Opinion
CV134005062S CV144005893
06-16-2016
Norberto Rivera (#114531) v. Warden
UNPUBLISHED OPINION
MEMORANDUM OF DECISION
Hon. Vernon D. Oliver, J.
The petitioner, Norberto Rivera, initiated this consolidated second petition for a writ of habeas corpus, claiming that his first habeas counsel (and through this counsel underlying trial counsel) provided him ineffective legal representation. He further claims prosecutorial impropriety and actual innocence. He seeks an order of this court vacating his convictions and returning the matter to the criminal court for further proceedings. The respondent denies the claims and asserts the defense of procedural default to the prosecutorial impropriety claim. The court finds the issues for the respondent and denies the petition.
Procedural History
In the criminal matter State v. Norberto Rivera, CR88-351403, in the Hartford Judicial District, the petitioner, on July 30, 1990, was convicted of Murder in violation of Connecticut General Statutes § 53a-54a(a); Attempted Murder in violation of Connecticut General Statutes § 53a-54a(a) and 53a-49(a)(2); and Assault first degree in violation of Connecticut General Statutes § 53a-59a(a)(1). Attorney Brian O'Connell represented the petitioner at trial.
On August 30, 1990, the trial court, Miano, J., sentenced the petitioner to a total effective sentence of seventy years to serve. The petitioner appealed the convictions directly to the Connecticut Supreme Court. State v. Rivera, 220 Conn. 408, 599 A.2d 1060 (1991). In his direct appeal, the petitioner was represented by attorney Richard Cramer. The following findings of that court are relevant to a disposition of the instant petition:
" The jury might reasonably have found the following facts. Javier Mautino, the assault victim, is the brother of the defendant's former girlfriend, Maria Ortiz. After Ortiz ended their relationship in 1984, the defendant remained angry at her and blamed her family for interfering with their romance. On February 3, 1987, in a taped telephone conversation with Ortiz, the defendant threatened to kill her brother, Mautino. In June 1988, shortly before the incident underlying the defendant's conviction, the defendant placed several calls to Ortiz' sister, Sonia Fraser, telling her that he planned to kill Mautino.
" On the evening of July 1, 1988, Mautino and Fernando Fuentes, the murder victim, were at the Peruvian Club in Hartford. The defendant, who was also present, argued with Mautino and challenged him to a fight outside. Mautino declined and the defendant, calling him a coward, departed. When Mautino and Fuentes left shortly thereafter, the defendant who had remained outside the club, shot both men. Fuentes died from his wounds and Mautino, although surviving the assault, died from cancer before the trial.
" The defendant next claims that statements he made subsequent to the shootings to sisters of Mautino, the assault victim, were improperly admitted into evidence as admissions of a party opponent. After an offer of proof was made outside the presence of the jury, the trial court determined that the statements were admissions and allowed Laura Rosario and Sonia Fraser, sisters of Mautino, to testify as to the content of telephone conversations they had with the defendant after the shootings. Rosario testified that approximately two weeks after the July 2, 1988 incident, the defendant telephoned her and said, " You know me. I already killed one, and tonight, you are going to see the rest." After Rosario expressed confusion as to what he meant, the defendant explained, " I am going to blow up your business tonight." Fraser testified that the defendant telephoned her approximately twelve times after the incident saying, inter alia, " I shot your brother. I am going to kill your brother. I am going to finish with your brother. I am going to get your sister. I am going to get the whole family." He also told her that he had only " started what he planned to do." On another occasion the defendant told her that, next time, he would shoot her brother " in the head, " and that he had to do it because Mautino was the only witness
" It is clear that these statements are relevant and material to the issues in this case since the jury might reasonably have inferred from their content that they manifested the defendant's conscious and continuing resolve to do away with Mautino's entire family. It is reasonable to assume that the jury would find these statements highly probative as they tended to show the defendant's intent and motive at the time of the shootings. Moreover, while these statements tend to incriminate the defendant, that, in and of itself, does not imply that they are legally prejudicial. " Evidence is not prejudicial . . . merely because it tends to incriminate a defendant. See State v. DeMatteo, [ supra, 186 Conn. at] 702-03 [186 Conn. 696, 443 A.2d 915].
" Contrary to the defendant's assertion, the trial court did balance any prejudicial effect against the probative value when it determined that these statements should be admitted into evidence. In finding that the statements were not too prejudicial, the trial court stated that such threats were not " of such a heinous nature that it would prevent the jury from being objective, fair and impartial." In addition, the trial court, in explaining why this evidence was important to the issue at hand, stated that: (1) the death of the witness Mautino before trial rendered these statements even more probative because of the " paucity of any eyewitness identification"; and (2) in light of the defendant's previously admitted threats against Ortiz and Mautino, which occurred before the shootings, these postincident threats were highly relevant. We see these findings as fact specific, logical and relevant to the issue confronting the trial court. Accordingly, we find no abuse of discretion in the trial court's ultimate conclusion to admit the statements."
State v. Rivera, supra, 220 Conn. 409-17.
On or about June 2, 1992, the petitioner filed a pro se petition for a writ of habeas corpus, assigned docket number CV92-001467. Attorney Todd Edgington represented the petitioner at the habeas trial. The habeas court, Zarella, J., denied the petition, making the following relevant findings of fact and conclusions of law:
" The petitioner, Norberto Rivera, pursuant to General Statutes § 52-466, article 1, section 8 of the Connecticut constitution, and amendments VI and XIV to the United States constitution, has filed a petition with this court for a writ of habeas corpus. In his petition, Rivera claims that he received ineffective assistance of counsel from his trial attorney Brian O'Connell and from his appellate attorney Richard S. Cramer. Rivera also claims that he is actually innocent. For the reasons set forth below, the petition is dismissed.
" On May 20, 1992, the petitioner filed his petition for habeas corpus based on ineffective assistance of counsel. Then, with the assistance of Public Defender Todd Edgington, the petitioner, on October 8, 1996, filed an amended petition. On November 21, 1997, the petitioner filed a second amended petition which, with a second amended third count to the second amended petition filed on August 11, 1999, is before the court pursuant to State v. Leecan, 198 Conn. 517, 541-42, 504 A.2d 480, cert. denied, 476 U.S. 1184, 106 S.Ct. 2922, 91 L.Ed.2d 550 (1986) (holding that the proper vehicle for raising an ineffective assistance of counsel claim is by a petition for a writ of habeas corpus). See also State v. Crespo, 246 Conn. 665, 718 A.2d 925 (1998); cert. denied, 525 U.S. 1125, 119 S.Ct. 911, 142 L.Ed.2d 909 (1999).
" The petition alleges in the first count that O'Connell's assistance " fell below the range of competence displayed by lawyers with ordinary training and skill in criminal law; and there is a reasonable probability that but for O'Connell's failures, the outcomes of the proceedings would have been different as the petitioner suffered actual prejudice to his defense and he remains burdened by an unreliable conviction." (Second Amended Petition, Count 1, ¶ 9, p. 5.) Specifically, the petitioner makes numerous claims of O'Connell's alleged failures to cross-examine witnesses, adequately and effectively cross-examine witnesses, adequately and effectively argue to the jury during summation, call witnesses, have evidence independently tested, investigate, and object to statements made by the state's attorney. (Second Amended Petition, Count 1, ¶ 8, pp. 2-5.) Many of the petitioner's claims focus on O'Connell's alleged failure to elicit and argue details of inconsistencies in the witnesses' testimony.
" In the second count, the petition alleges that on appeal Attorney Cramer's assistance also fell below the standard of competence for criminal lawyers and that Cramer's alleged failures prejudiced the petitioner. (Second Amended Petition, Count 2, ¶ 9, p. 6.) More specifically, the petitioner claims that Attorney Cramer " failed to raise evidentiary and constitutional issues for review in the petitioner's direct appeal." (Second Amended Petition, Count 2, ¶ 8, p. 6.)
" Finally, in count three, the petitioner alleges that he was " denied his state and federal constitutional rights to effective assistance of counsel and due process of law . . . [and that he] is actually innocent." (Citations omitted.) (Second Amended Third Count to Second Amended Petition, Count 3, ¶ 8, p. 1.)
" In connection with Rivera's petition for a writ of habeas corpus, a hearing was held before this court beginning on January 6, 1998 and continuing intermittently through November 20, 1998. Throughout the course of the hearing, several witnesses testified: Norberto Rivera, the petitioner; Attorney Brian M. O'Connell, trial counsel for the petitioner; Dr. Ira Kanfer; Hernan Viera; Donald Gates; John Bernetich; Det. William Gervais; Carlos Bonilla; Det. Michael Dakin; Robert Hathaway; Armando Salvador; Maria Ortiz; Det. Bruce Tischofer; Oswald Blint; Sgt. Ola Pollard; Off. Peter Hopkins; Det. Cruz Gonzales; Det. Gary Smith; Det. Peter Michaud; and Attorney Thomas Farver. The petitioner filed his post-trial brief on October 15, 1999.
" In addition to the facts of the case as stated, supra, this court makes the following findings of fact from the hearing on the petition for a writ of habeas corpus. Throughout the course of the habeas hearing, O'Connell generally agreed that he had access to the materials necessary to cross-examine Mautino and there appears to be no substantial argument regarding O'Connell's investigation. (See Note 1, supra .) The petitioner's main contention is that O'Connell should have used the materials that were available to impeach Mautino during cross-examination and also that O'Connell should have used the materials in his summation to the jury. Throughout the habeas hearing, O'Connell had very little independent recollection of the details of his representation of Rivera. It was often necessary for O'Connell to consult his trial notes and transcripts of the probable cause hearing and the video deposition of Mautino in order to refresh his recollection. The only substantive aspect of the criminal trial about which O'Connell had an independent recollection was his general theory of defense. However, this lack of recollection with respect to the details of a trial, that had taken place eight years earlier, was not surprising.
" Mautino, the surviving victim of the shooting, contracted stomach cancer prior to trial. His condition worsened as the cancer spread to his bones, liver, and other organs. Due to his possible unavailability for trial, his video deposition was taken. (Resp. Ex. O.; Pet Ex. 3, p. 74, et seq.) O'Connell represented the petitioner at that deposition and cross-examined Mautino. Mautino died before the trial commenced. At the deposition, Mautino testified that on the night of the shootings he consumed " maybe nine, maybe ten, maybe more, maybe less" beers. (Pet. Ex. 3, p. 155.) Earlier, at the probable cause hearing, Mautino gave similar testimony saying that he had consumed six or eight twelve-ounce Budweiser beers. (Pet. Ex. 1, p. 46-47.) When asked in what amount of time he had consumed those six to eight beers, Mautino replied that he had done so from the time he and Fuentes arrived at Club Peru until the time of the incident. (Pet. Ex. 1, p. 47.)
" Regarding the video-taped deposition, the jury could reasonably have found Mautino's testimony to be credible and compelling. During the deposition, Mautino appeared to be in obvious pain and discomfort, indicated not only by his facial expressions and frequent shifting in his chair, but also by his testimony that he was constantly in pain because of the cancer that had spread through many of his vital organs and throughout his body. (Pet. Ex. 3, pp. 79-84.) Mautino testified that his illness was terminal (Pet. Ex. 3, pp. 82-83) and, in fact, he died before the trial began. (Pet. Ex. 3, p. 74.) Mautino's deposition was admitted at trial. (Pet. Ex. 3, p. 74.)
" With respect to the substance of Mautino's testimony, the jury could have reasonably found the following facts. Rivera was within five or six feet of Mautino, who was by that point lying on the ground, when Rivera fired the last two or three shots; therefore, Mautino would have had a very close view of the shooter. (Pet. Ex. 3, pp. 138-41.) Not only did Mautino testify that he saw Rivera shoot him, he also testified that he heard Rivera's voice as Rivera made statements during the shooting such as " So there are two of you, so there is two for one" (Pet. Ex. 3, p. 134.); " Now, everybody knew who T.J. was" (Pet. Ex. 3, p. 139.); " I am going to kill you." (Pet. Ex. 3, p. 139.) In addition to his testimony at the probable cause hearing and at the deposition, Mautino identified Rivera as the shooter on a number of different occasions: to a police officer at the scene of the shootings at approximately the time that Mautino was put into an ambulance (Pet. Ex. 3, pp. 143-44.); at the hospital where Mautino told his brother, Armando Salvatore, that T.J. [Rivera] shot Mautino and that Armando would have to tell the police because Mautino " did not know whether he was going to make it." (Pet. Ex. 3, p. 144.); at the hospital on the following afternoon in a statement to Detective Dakin (Pet. Ex. 12, p. 2.); again at the hospital, in a statement to Detective Dakin on July 6, 1988, approximately 5 days after the shooting (Pet. Ex. 13.); again to Detective Dakin on July 8, 1988 (Pet.Ex.14); and again to Detective Dakin on September 2, 1988 at the Crimes Against Persons Division. (Pet. Ex. 15.) Finally, although Mautino was not clear about many of the details of the events prior to the shootings or about the details of the shootings themselves, as he recounted them during the deposition, he admitted as much and never deviated substantially from the substance of his version of the events.
" Also during the habeas hearing, Rivera testified as to his version of the events that took place on the night of the shootings. (Rivera v. Warden . Transcript, Mar. 4, 1998 (hereinafter Transcript VIII); Rivera v. Warden Transcript, Mar. 6, 1998 (hereinafter Transcript IX); Pet. Brief, pp. 16 27.) During the cross-examination, Rivera was evasive in many of his responses and often answered initial questions, but then declined to give more detail to follow up questions. For instance, Rivera testified that he told a senior partner in O'Connell's firm that he did not want to be represented by O'Connell; but, in response to another question, Rivera claimed that he did not remember what his reason was for not wanting O'Connell as his attorney. (Transcript IX, p. 55.) Later on, however, Rivera did give a reason (after again testifying that he could not remember) for why he didn't want O'Connell to represent him, namely, that during one visit at the jail, it appeared to him that O'Connell was drunk. (Transcript IX, p. 77-78.) Therefore, this court finds that Rivera's testimony, based on these inconsistencies as well as other factors, was less than credible and that his explanation of the events surrounding the shootings is unpersuasive.
" At the habeas hearing, the petitioner called Attorney Thomas Farver to testify as an expert on criminal trials. (Transcript VIII, pp. 49, et seq.) In attempting to elicit Farver's opinion as to the standard of competence for a criminal defense attorney, the petitioner's attorney posed a number of hypothetical fact patterns. The first hypothetical about which Farver was asked was significantly different than the facts in the present case in that the hypothetical includes the assumption that the victim indicated that there was a street fight. (Transcript VIII, pp. 57-58.) Farver gave an opinion that an attorney's failure to address the inconsistencies, in such a hypothetical situation, fails to meet the required standard of competence. (Transcript VIII, pp. 58-59.) This opinion, however, is of very little value in the present case because, as explained, in section IVA(I)(a), infra, Mautino never testified or gave a statement indicating that there was a fight. Therefore any opinions given by Farver based on the original assumptions of the first hypothetical are inaccurate as applied to the facts of the present case. Farver even admitted that his opinions are only accurate as to the facts of the hypothetical given to him. (See Transcript VIII, p. 100.)
" Next, to the extent that Farver gave testimony without having read the testimony of certain witnesses, his opinions can be discounted. For example, Farver testified that because of O'Connell's failure to cross examine on certain inconsistencies, those inconsistencies were left unchallenged. (Transcript VIII, pp. 86-87.) The inconsistencies, however, were challenged by O'Connell through the testimony of the defense witnesses who recounted different facts than the victim. Without having read the defense witness' testimony (Transcript VIII, pp. 95-98), Farver could not possibly have formed a proper opinion as to whether O'Connell's attempt to impeach Mautino met the required standard of competence. In any case, Farver testified that one way to impeach a witness' testimony is to bring in other witnesses whose testimony contradicts with what the first witness said. (Transcript VIII, pp. 97-98.) Also, Farver testified that he read the transcript of Mautino's trial testimony but did not view the videotape of that testimony. (Resp. Ex. O.) Farver's opinion with respect to how a reasonably competent defense attorney would approach cross-examination of a witness, such as Mautino, may have been drastically altered after such a viewing.
" Finally, when called to testify during the habeas hearing, Hernan Viera, the person whom the petitioner alleges was the shooter, asserted his Fifth Amendment rights and chose not to answer any substantive questions. (Transcript V, pp. 16-35.)
" In sum, O'Connell ought to have addressed any relevant inconsistency in Mautino's statements during the trial. However, it is important to remember that what matters is the impact and import of the inconsistencies. O'Connell reached the reasonable conclusion that the risks of pointing out certain inconsistencies outweighed the benefits that the defense might gain. (Transcript V, pp. 58-67.) Furthermore, even if O'Connell's decision not to cross-examine on these various inconsistencies constituted a deficient performance, the court finds that the petitioner suffered no prejudice because of the performance. The inconsistencies, even if brought out, simply would not have undermined the strength of the state's case.
" The twelve alleged failures of O'Connell to impeach, either through cross-examination or through arguments to the jury during summation, whether viewed individually or collectively do not constitute ineffective assistance of counsel as the standard has been established by our courts. Under the two-pronged test of Strickland v. Washington, O'Connell's performance was not deficient, except for those situations as noted above, and in no respect did any deficiency, individually or collectively, cause Rivera to suffer actual prejudice. In sum, this court finds that O'Connell's representation of Rivera was not constitutionally ineffective based on the twelve alleged failures. Furthermore, O'Connell's decision not to cross-examine on, or include in his jury summation, the inconsistencies pointed to by petitioner is further justified by O'Connell's theory of the case as discussed in the next section.
" The petitioner also claims in his post-trial brief that O'Connell's defense theory of fabrication does not excuse his alleged failure to present a complementary defense theory. (Petitioner's Brief, p. 64.) O'Connell, during the habeas hearing, repeatedly testified that it was his theory that Rivera's best defense would be one that focused on Mautino's alleged hatred for Rivera as well the theory that Hernan Viera was the gunman. (Tanscript II, pp. 44-47; Rivera v. Warden, Transcript, Jan. 9, 1998, p. 29-34 (hereinafter Transcript IV); Transcript V, pp. 36-37, 45-48, 55-67, 77-79, 90-91; Rivera v. Warden, Transcript, Jan. 14, 1998, p. 19-22, 28-32, 56-63 (hereinafter Transcript VI).) " The theory of my case, the strategy which I was pursuing was a strategy which focused upon the motives of Mautino and the supporting-and his supporting witnesses, which were generally members of his family to fabricate a story or an accusation against my client. I believe that this was the most rational, this would provide the most rational and reasonable theory of innocence that was possible and that that would be the main focus in my opinion based upon my assessment of the impact of the state's witnesses, the condition and impact . . . the condition meaning the physical condition of Mr. Mautino, his appearance in front of a camera, which was the way that he was presented obviously to the jury, the testimony of his witnesses . . ." (Transcript IV, p. 29.)
" In order to present his defense of Rivera, O'Connell called several witnesses who testified that Rivera was the fighter not the shooter and that a taller individual was the shooter. This was O'Connell's attempt to impeach the credibility of Mautino's testimony, rather than badgering a witness who was also the victim and who was dying and obviously in discomfort. Also, in light of the history between Mautino and Rivera especially the facts regarding the relationship between Rivera and Ortiz (Mautino's sister), it was certainly reasonable for O'Connell to attempt to present a clear theory of the case that focused on Mautino's alleged hatred for Rivera. From the outcome of the trial, it is apparent that the jury did not find the defense witness' testimony credible enough to overcome Mautino's testimony. Nevertheless, O'Connell's theory to focus on Mautino's animosity towards Rivera while avoiding confusing details was sound and cannot be second guessed merely because Rivera was convicted. Furthermore, there is no reason to hold that O'Connell should have argued in the alternative to the jury, despite the petitioner's suggestion that he should have done just that. Such a strategy is inherently risky; a competent criminal defense attorney would normally avoid making alternative arguments to a jury.
" The petitioner's best argument seems to be this: O'Connell could have bolstered his case by arguing that (in addition to O'Connell's theory that Mautino named Rivera as the shooter because Mautino hated Rivera for what Rivera had done to Mautino's sister) many of Mautino's statements, (esp. those about there being two Puerto Rican males; whether there was a fight; and the location of the cars, light pole, and shooter) are inconsistent and seem to point to the possibility that perhaps someone else was the shooter. These inconsistencies actually support the other eye witnesses' testimony. Nevertheless, the petitioner has failed to sustain his burden of proving that O'Connell's performance with respect to these alleged inconsistencies was unreasonable " under prevailing professional norms, " Strickland v. Washington, supra 466 U.S. at 688, and caused the petitioner actual prejudice.
" In conclusion, faced with a sympathetic victim who testified that he was shot at very close range by a defendant who the victim knew, and who had often threatened to kill the victim, defense counsel devised a strategy that was reasonable. His thorough case investigation led him to witnesses who supported the defense theory that the petitioner was not the shooter and defense counsel offered an explanation as to why the victim might lie about the events. The case revolved around credibility and the jury chose to believe the victim. While other tactics and strategies might have been employed and while defense counsel could have taken advantage of certain opportunities to impeach the victim's testimony, defense counsel attempted to do so, for the most part, through the use of other witnesses. O'Connell's representation fell within the broad range of competence as that standard has been established by Strickland v. Washington and its progeny.
" In his second amended petition, the petitioner alleged that his appellate counsel, Attorney Cramer, rendered ineffective assistance of counsel. (Second Amended Petition, Count 2, If 11, pp. 5-6.) Because the petitioner did not address this count in his post-trial brief, it is considered waived pursuant to Practice Book § 5-2 and will, therefore, not be addressed by this court.
" Finally, in count three, the petitioner alleges that he was " denied his state and federal constitutional rights to effective assistance of counsel and due process of law . . . [and that he] is actually innocent." (Citations omitted.) (Second Amended Third Count to Second Amended Petition, Count 3, ¶ 8, p. 1.) The petitioner argues that the federal standard for actual innocence claims in habeas cases, as set forth by the Supreme Court of the United States in Murray v. Carrier . 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), and Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995), should be adopted in Connecticut. For the reasons set forth below, this court declines the petitioner's request to adopt the federal standard . . .
" The petitioner argues that Connecticut courts have implied that gateway claims are permissible in Connecticut state habeas proceedings. (Pet. Brief, pp. 84-88.) Based on this premise, the petitioner asks this court to recognize his claim as a gateway claim of actual innocence, and adopt the " new reliable" evidence standard of Schlup v. Delo, supra, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808. The petitioner claims that because of his trial attorney's incompetence, certain evidence that existed at the time of trial was not presented to the jury. This evidence, the petitioner claims, is newly reliable in that it points to the petitioner's actual innocence.
" Even if this court were to agree with the petitioner and adopt the federal gateway standard as established in Schlup and Carrier it is clear that the petitioner's claim of actual innocence must still fail because of the petitioner's failure to sustain his burden of proof on his claim of ineffective assistance of trial counsel.
" Furthermore, the petitioner's arguments regarding his actual innocence are based on the following faulty premise: " That the jury found Mr. Rivera guilty, in large part, must be attributed to the overwhelming nature of the physical evidence in the state's case." The state's case at trial was built largely on testimonial evidence, not physical evidence. This fact is amplified by the petitioner's extensive focus on critiquing Mautino's testimony. The petitioner has argued, on the one hand, that Mautino's inconsistencies are particularly important because the state's case was based largely on Mautino's testimony. On the other hand, the petitioner argues that it was the physical evidence that resulted in Rivera's conviction. The petitioner cannot have it both ways. Because this court finds that the petitioner's arguments regarding his actual innocence claim are built on a faulty premise, the arguments must fail.
" Moreover, it cannot be said that had Mautino's inconsistent statements been presented to the jury, " no reasonable juror would have found [the] petitioner guilty beyond a reasonable doubt." Schlup v. Delo, supra 513 U.S. at 327. Although the inconsistent statements might have raised doubts, especially about the location of the shooting on Francis Avenue, the petitioner has not met his burden of showing " that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence . . ." (Emphasis added.) Id. The " newly reliable" evidence as produced by the petitioner is minor and inconsequential. Simply put, the evidence adduced at the habeas hearing and the original trial is not sufficient to show a reasonable probability that the jury would have decided the case differently.
For all of the foregoing reasons the petition is dismissed."
Rivera v. Warden, State Prison, CV-921467, 1999 WL 1328081, at *15 (Conn.Super. Dec. 30, 1999), aff'd sub nom. Rivera v. Commr. of Correction, 70 Conn.App. 452, 800 A.2d 1194 (2002).
The petitioner appealed the judgment of the habeas court. Rivera v. Commissioner of Correction, 70 Conn.App. 452, 800 A.2d 1194, cert. denied, 261 Conn. 921, 806 A.2d 1061 (2002). Attorney Edgington represented the petitioner on appeal. In affirming the judgment below, the Appellate Court found the following, in relevant part:
" The habeas court found, under the first prong of Strickland, two specific instances of ineffective assistance of counsel. Both instances arise from O'Connell's failure to impeach Mautino's testimony . . .
" The habeas court, however, determined that, although O'Connell's failure to expose the inconsistencies in Mautino's testimony regarding the alleged fight and the events preceding it, as well as the location of Mautino's automobile, amounted to deficient representation, the petitioner did not suffer actual prejudice from it. We review only the habeas court's conclusion that O'Connell's deficient representation of the petitioner did not call into question the reliability of the trial, thereby resulting in actual prejudice to the petitioner.
" The petitioner argues that O'Connell's failure was tantamount to a failure to induce reasonable doubt in the minds of the jurors. We disagree because despite the fact that the habeas court found O'Connell's representation of the petitioner to be deficient regarding those events, the jury had ample evidence on which to base its conviction of the petitioner. For instance, testimony revealed that in 1987 during a taped telephone conversation with Ortiz, the petitioner had threatened to kill Mautino. Testimony further revealed that the petitioner, shortly before the incident, made several telephone calls to Fraser during which he stated to her his plans to kill Mautino. Mautino's testimony placed the petitioner at the crime scene and on numerous occasions he positively identified the petitioner as the shooter. Mautino further testified that he saw the petitioner shoot him and that he heard the petitioner speak during the shootings and say: " So there are two of you, so there is two for one"; " Now everybody knew who [the petitioner] was"; and " I am going to kill you."
" On the basis of our plenary review of the record, we conclude that the habeas court properly concluded that any deficiencies in O'Connell's representation of the petitioner did not cause him actual prejudice because they were not so serious as to deprive the petitioner of a fair trial. See Crump v. Commissioner of Correction . 68 Conn.App. 334, 337, 791 A.2d 628 (2002). Stated differently, the habeas court properly concluded that O'Connell's lack of competency did not contribute so significantly to the petitioner's conviction as to have deprived him of a fair trial. See Valeriano v. Bronson, supra, 209 Conn. at 86, 546 A.2d 1380. We agree that had O'Connell impeached Mautino's testimony, such elicitation would have proven trivial at best because it would not have refuted the " totality of the evidence before the judge or jury." Strickland v. Washington, supra, 466 U.S. at 695, 104 S.Ct. 2052. The habeas court, therefore, properly concluded that the petitioner failed to show actual prejudice.
" The petitioner claims that numerous other instances of ineffective assistance of counsel caused him actual prejudice. The habeas court, however, found that such instances either did not amount to deficient representation, under the first prong of the analysis, or that, under the second prong of the analysis, there was no actual prejudice suffered by the petitioner as a result of such representation.
" Assuming that all of those instances amounted to deficient representation of trial counsel, we conclude that the petitioner has failed in each instance, whether considered individually or collectively, to satisfy his burden of proving actual prejudice. In other words, he did not " demonstrate that there is a reasonable probability that the result of the proceedings would have been different had it not been for counsel's deficient performance." Copas v. Commissioner of Correction, 234 Conn. 139, 155, 662 A.2d 718 (1995). A jury, on the basis of the totality of the evidence presented to it, reasonably could have concluded beyond a reasonable doubt that the petitioner was guilty of the crimes with which he was charged.
" The petitioner next claims that the habeas court improperly rejected his claim of actual innocence. He contends that he has asserted a " gateway" claim of actual innocence and that the habeas court erred in failing to apply the federal standard for review of gateway claims of actual innocence set forth by the United States Supreme Court in Schlup v. Delo, 513 U.S. 298, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995). We disagree.
" Neither this court nor our Supreme Court has expressly recognized the viability of a gateway claim of actual innocence in this state . . . Here, however, the petitioner was not confronted with any procedural impediment to review of his ineffective assistance of counsel claim, and, indeed, the habeas court fully addressed the merits of that claim. The petitioner was therefore in no need of a " gateway, " and the habeas court correctly declined the petitioner's invitation to apply the federal gateway standard to his actual innocence claim.
The judgment is affirmed."
Rivera v. Commissioner of Correction, supra, 70 Conn.App. 454-62.
On May 3, 2004, the petitioner filed a federal habeas petition wherein he was again represented by attorney Edgington. Rivera v. Lantz, 3:03CV1664 AWT, 2011 WL 4621633 (D.Conn. Sept. 30, 2011). That court, Thompson, J., made the following relevant findings:
" At trial, Mautino's sisters testified that the petitioner contacted them and stated: (1) " You know me, I already killed one, and tonight, you are going to see the rest . . . I am going to blow up your business tonight, " (2) " I shot your brother, I am going to kill your brother. I am going to finish with your brother, I am going to get your sister. I am going to get the whole family, " (3) that he had only " started what he planned to do, " and (4) that he would shoot Mautino " in the head, " because Mautino was the only witness to the incident in question. Rivera, 220 Conn. at 414. Luz Gonzalez, who knew the petitioner through her boyfriend, testified that following the incident, the petitioner confessed to her that he " had to kill . . . the Peruvian guy, " and repeated " I killed him, I killed him." (Mem. Opp. Writ at 13 (citing T. 6/26/90 at 81-89.)).
" The petitioner testified at trial that he left town following the incident and stayed with relatives until he eventually turned himself in. ( Id. at 28 (citing T. 3/4/98 at 90-94.)) His probation officer also testified that the petitioner called her, told her he knew he was wanted by the police and was not going to return to Connecticut. ( Id. at 29 n.22 (citing T. 6/26/90 at 23-26)) Additionally, the petitioner testified that he called his probation officer from Illinois and contrived a story that Fuentes attacked him with a baseball bat the night of the shooting. (Id. (citing T. 3/4/98 at 95.))
" The petitioner challenges his conviction on the ground that he was denied his Sixth Amendment right to effective assistance of counsel. An ineffective assistance of counsel claim is reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). " It is past question that the rule set forth in Strickland qualifies as clearly established Federal law, as determined by the Supreme Court of the United States." Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (internal citations omitted). Supreme Court precedent dictates that the Connecticut state courts should have applied the Strickland test in deciding the petitioner's ineffective assistance of counsel claim. See id. Thus, the petitioner is entitled to relief if the appellate court's decision rejecting his ineffective-assistance claim was either " contrary to, or involved an unreasonable application of" Strickland . Id. . . .
" After reviewing the record in its entirety, the court finds that the totality of the evidence properly before the jury was so compelling that there is no reasonable probability that the outcome of the trial would have been different had trial counsel acted effectively. The evidence of the petitioner's guilt was overwhelming. As the appellate court noted, testimony revealed that the petitioner threatened to kill Mautino and that he stated his intention to Ortiz's sister. Additionally, Mautino was within five or six feet of his shooter and unambiguously identified the petitioner as his shooter. He testified not only that he saw the petitioner shoot him, but also that he heard the petitioner say: " So there are two of you, so there is two for one; " " Now everybody knew who [the petitioner] was; " and " I am going to kill you." The jury credited this testimony over the testimony from the three eyewitnesses who testified at trial that the petitioner was not the shooter. Moreover, the state habeas court reviewed Mautino's deposition tape and noted that the jury could reasonably have found Mautino's testimony " credible and compelling." Rivera v. Warden, No. CV 921467, 1999 WL 1328081, at *4 (Conn.Super. Dec. 30, 1999).
" The jury also heard testimony from Mautino's sisters that the petitioner contacted them after the shooting and stated: (1) " You know me, I already killed one, and tonight, you are going to see the rest . . . I am going to blow up your business tonight, " (2) " I shot your brother, I am going to kill your brother. I am going to finish with your brother, I am going to get your sister. I am going to get the whole family, " (3) that he had only " started what he planned to do, " and (4) that he would shoot Mautino " in the head, " because Mautino was the only witness to the incident in question. Luz Gonazlez testified that the petitioner confessed to her that he " had to kill . . . the Peruvian guy, " and repeated " I killed him, I killed him." The petitioner testified that he fled after the shooting and fabricated a story about Fuentes attacking him with a baseball bat the night of the shooting. The jury also heard testimony from the petitioner's probation officer, who stated that the petitioner called her and told her that he knew he was wanted by the police and was not going to return to Connecticut.
" Based on a review of the totality of the evidence, the court agrees with the state appellate court that the petitioner did not suffer any prejudice because the outcome of his trial would not have been different had counsel acted effectively.
" The amended petition for a writ of habeas corpus is hereby DENIED. The Clerk is directed to enter judgment in favor of the respondent and close this case. Because the petitioner has not " made a substantial showing of the denial of a constitutional right, " 28 U.S.C. § 2253(c)(2), the court declines to issue a certificate of appealability.
Rivera v. Lantz, 3:03CVI 664 AWT, 2011 WL 4621633, at *8 (D.Conn. Sept. 30, 2011).
Thereafter, on December 31, 2012, the petitioner filed the instant petition. In a decision dated February 20, 2013, the habeas court, Newson, J., entered a partial judgment dismissing the claims asserting ineffective assistance of underlying trial counsel.
II
Law/Discussion
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 Proceedings
" 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).
Credibility
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, 977 A.2d 772, cert. denied, 294 Conn. 904, 982 A.2d 647 (2009).
A. 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).
In his amended complaint dated November 24, 2014, the petitioner asserts:
1. Actual Innocence, in that " [t]he testimony of Michelle [Michela] Scalora, an eyewitness to the shooting, will establish that the petitioner is actually innocent, and that a third party shot both of the victims." The petitioner asserts that the evidence in support of this claim is newly discovered, as that term is defined by case law;
2. Ineffective Assistance of Habeas Counsel, in that attorney Edgington:
a. Failed to raise a freestanding claim of actual innocence; b. Failed to present the testimony of Michelle Scalora in support of an actual innocence claim;
c. Failing to claim at the first habeas trial that underlying trial counsel was ineffective in failing to present the testimony of a crime scene reconstruction expert;
d. Failing to claim at the first habeas trial that underlying trial counsel was ineffective in failing to object to the trial prosecutor's religious reference during closing argument;
e. Failing to claim at the first habeas trial that underlying trial counsel was ineffective in failing to object to a misleading jury instruction regarding specific intent; and
f. Failing to claim at the first habeas trial that underlying trial counsel was ineffective in failing to request a jury instruction for Manslaughter in violation of Connecticut General Statutes § 53a-55; and
3. Prosecutorial impropriety, in vouching for the veracity of a witness and evoking the passions of the jury in closing argument.
The Court heard the trial of this matter on May 6 and 7, 2015. The petitioner presented as witnesses himself, attorney Edgington, Peter Massey (crime scene reconstruction expert) and Michelle Scalora. Both parties entered a number of exhibits into evidence. The petitioner submitted a post-trial brief.
1. Actual Innocence
The petitioner asserts that he is actually innocent of the criminal charges. In support of this contention he offers the testimony of Michela Scalora as " newly discovered" evidence.
Regarding the testimony, our appellate court has recently addressed the proper standard and analysis for evaluating a freestanding claim of actual innocence:
To prove actual innocence the petitioner must be able " to show that based on proffered newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could [find] proof of guilt beyond a reasonable doubt." (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 240 Conn. 547, 548, 692 A.2d 1231 (1997). " Actual innocence, also referred to as factual innocence . . . is different than legal innocence. Actual innocence is not demonstrated merely by showing that there was insufficient evidence to prove guilt beyond a reasonable doubt . . . Rather, actual innocence is demonstrated by affirmative proof that the petitioner did not commit the crime . . . " [T]he proper standard for evaluating a freestanding claim of actual innocence is twofold. First, the petitioner 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, the petitioner 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; internal quotation marks omitted.) Jackson v. Commissioner of Correction, 149 Conn.App. 681, 706, 89 A.3d 426, cert. granted on other grounds, 313 Conn. 901, 96 A.3d 558 (2014).Nemhard v. Commissioner of Correction, 157 Conn.App. 368, 374, 117 A.3d 915 (2015).
Our Appellate and Supreme Courts have further discussed the actual innocence jurisprudence as follows:
" Our Supreme Court recently clarified the actual innocence standard in Gould . . . In Gould, the habeas court found that the petitioner was entitled to relief on his actual innocence claim after the recantations of testimony that was the sole evidence of [the petitioner's] guilt . . . On appeal, our Supreme Court held that the clear and convincing burden . . . requires more than casting doubt on evidence presented at trial and the burden requires the petitioner to demonstrate actual innocence through affirmative evidence that the petitioner did not commit the crime . . . Recantations of inculpatory criminal trial testimony undoubtedly are relevant to a determination of actual innocence. But evidence of that nature must be accompanied by affirmative evidence of innocence to meet [the] standard of clear and convincing evidence of actual innocence." (Citations omitted; emphasis in original; internal quotation marks omitted.) Harris v. Commissioner of Correction, 134 Conn.App. 44, 49-50, 37 A.3d 802, cert. denied, 304 Conn. 919, 41 A.3d 306 (2012).
" Affirmative proof of actual innocence is that which might tend to establish that the petitioner could not have committed the crime even though it is unknown who committed the crime, that a third party committed the crime or that no crime actually occurred . . . Clear and convincing proof of actual innocence does not, however, require the petitioner to establish that his or her guilt is a factual impossibility." (Citations omitted; emphasis in original.) Gould v. Commissioner of Correction, 301 Conn. 544, 563-64, 22 A.3d 1196 (2011).
" With respect to the first component of the petitioner's burden, namely, the factual finding of actual innocence by clear and convincing evidence . . . [t]he appropriate scope of review is whether, after an independent and scrupulous examination of the entire record, we are convinced that the finding of the habeas court that the petitioner is actually innocent is supported by substantial evidence. This is the same scope of review that we apply to the ultimate finding by a trial court regarding whether a confession in a criminal case is voluntary . . . The weight of the interests at stake in the factual determination by the habeas court in the present case compels the same heightened level of scrutiny." (Internal quotation marks omitted.) Harris v. Commissioner of Correction, supra, 134 Conn.App. 51.
" [O]ur 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 . . . This court, nevertheless, 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." (Citation omitted; internal quotation marks omitted.) Gaston v. Commissioner of Correction, 125 Conn.App. 553, 558-59, 9 A.3d 397 (2010), cert. denied, 300 Conn. 908, 12 A.3d 1003 (2011)."
Jackson v. Commissioner of Correction, 149 Conn.App. 681, 706, 89 A.3d 426 (2014).
Ms. Scalora testified on direct examination, in essence, that she witnessed the petitioner (known to her as " T.J.") exit Club Peru on the night in question (July 2, 1988), engage in an altercation with the two victims, then heard two gunshots from a different area than where the petitioner was located. She then saw Fernando Fuentes fall down, apparently as a result of being shot. She testified that she did not see the petitioner with a gun that night.
Ms. Scalora testified that she did not speak with the police on the night in question. She testified that the police did not speak with anyone at the scene of the shooting for the entire night (the transcript from the Hearing in Probable Cause at p. 17 indicates that police interviewed at least two individuals). She testified further that later, on a date she could not recall, she went to the Hartford police to tell them what she saw and was told to " mind [her] own business" regarding the homicide investigation. She further testified that approximately 6-7 months after the shooting (approximately January 1989) she discussed what she had seen at the home of a friend (Rosa) during a baby shower. Ms. Scalora testified at the habeas trial that the petitioner's mother, with whom she was unfamiliar, happened to be present at the home of her friend when this discussion took place. She testified, incredibly, that the petitioner's mother asked her no questions at all about what she saw which, if true, was potentially exculpatory of her son. She testified that seven months after Rosa's baby shower (approximately July 1989) she visited the law office of attorney William Gerace, then the employer of underlying counsel. She testified that she spoke with both attorneys Gerace and Stephen Mayer. Ms. Scalora also testified that in 1990 she met with the petitioner's mother to discuss the shootings and what she saw. She testified that in 1995, she met again with the petitioner's mother to discuss what she saw during the shooting. She was asked in 1995, and agreed, to speak again with attorney Gerace, by whom underlying counsel was employed. She testified that attorney Gerace told her to " go home." She then testified that she dictated, at the petitioner's mother's request, a letter describing what she saw during the shooting. She did not know the person to whom the letter was dictated and, though she dictated the letter in Spanish, the letter was written in English for the benefit, it is assumed, of the intended reader. She signed the English version because although she did not write in the English language, she was able to read English at the time. A copy of the letter is in evidence as an identification exhibit (Pet. Ex. 13). She testified that the original was mailed to the petitioner in prison.
The court finds the circumstances underlying Ms. Scalora presenting herself to attorney Gerace (if she did) and the creation of Petitioner's Exhibit 13 to be extremely suspicious, affecting negatively this Court's view of the direct testimony of Ms. Scalora. This Court relies on the previous chronology of her reporting and her description of the police investigation in support thereof. This court concurs with the prior habeas trial testimony of underlying trial counsel that Ms. Scalora would not have been viewed as a reliably truthful witness by the fact-finder at the underlying trial.
Upon inquiry by the Court, Ms. Scalora gave testimony that, if given during the underlying trial, would have been damaging to the defense. She testified that she saw the entire altercation between the petitioner, Mr. Mautino and Mr. Fuentes. She testified that she heard two shots and saw both Mr. Fuentes and Mr. Mautino fall to the ground after hearing the shots. Finally, she testified that during the physical altercation, the shooting and for five minutes after the shooting she saw no one else on the street or in the area. Upon this Court's inquiry, she was clear that she did not see a third party shoot Mautino or Fuentes. This part of her testimony, which the Court credits, is completely contrary to the petitioner's self-serving, incredible testimony.
First, the aforementioned chronology of the Scalora information compels this Court's finding that this is not newly discovered information. This court concurs with prior habeas counsel's testimony in this regard relating to free-standing actual innocence claim. Assuming, arguendo, that the letter and the information contained therein can be considered newly discovered evidence, the latter and its contents do not constitute affirmative proof of factual innocence in that, as relates to the other evidence in the case, it does not tend to establish that the petitioner could not have committed the crime or that a third party committed the crime, as suggested by the petitioner.
Upon lengthy review of the entire record of more than two decades of litigation, including previous court decisions, trial transcripts and numerous exhibits, the petitioner has failed to establish by clear and convincing evidence that he is actually innocent. In terms of independent factual findings of fact, this court cites, for example, the eyewitness testimony and the reasonable inferences to be drawn therefrom, in support of a finding that the petitioner has failed to establish that no reasonable factfinder could find the petitioner guilty of the crimes of which he stands convicted. " Mere conjecture and speculation are not enough to support a showing of prejudice." (Internal quotation marks omitted.) Hamlin v. Commissioner of Correction, 113 Conn.App. 586, 596, 967 A.2d 525, cert. denied, 291 Conn. 917, 970 A.2d 728 (2009).
Additionally, the testimony of Ms. Scalora as to what she saw, what she discussed and how she came to be a witness at this habeas trial damages the petitioner's case greatly, in that, had Ms. Scalora been properly examined at the underlying trial, her testimony as to there being only three people present during a shooting where the only person not shot was the petitioner, would not have been helpful to the defense, to say the least. This information tends to inculpate the petitioner in the shootings and is strong evidence of his guilt.
2. Ineffective Assistance of Habeas 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. at 694.
" To satisfy the performance prong, a claimant must demonstrate that 'counsel made errors so serious that counsel was not functioning as the " counsel" guaranteed . . . by the [s]ixth [a]mendment.'" Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. 687. 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. at 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., at 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. at 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]).
The petitioner asserts that first habeas counsel was ineffective for several reasons relating to both the underlying trial and the prior habeas action, including the retention of an expert crime reconstruction witness.
For assessing claims of ineffective assistance based on the performance of prior habeas counsel, the Strickland standard is as follows. " [When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding . . . [T]he petitioner will have to prove that . . . prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial . . . Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of [appellate] counsel must essentially satisfy Strickland twice: he must prove both (1) that his appointed habeas counsel was ineffective, and (2) that his [trial] counsel was ineffective." (Citations omitted; internal quotation marks omitted.) Lapointe v. Commissioner of Correction, supra, 113 Conn.App. at 394.
Therefore, in order to set forth a prima facie case of ineffective assistance of habeas counsel on the ground of ineffective assistance of trial counsel, the petitioner must set forth a prima facie case of ineffective assistance of trial counsel.
Regarding claims D, E and F of the Ineffective Assistance claim, the Court finds that the petitioner has failed to present sufficient evidence in support of, to properly analyze, and argue those claims. To the extent presented during trial, this Court agrees with prior habeas counsel that the claims were susceptible to procedural default. Additionally, the petitioner has failed to overcome the presumption of competence. This Court defers to attorney Edgington's strategic decision not to pursue the claims. Finally, this Court agrees with attorney Edgington that those claims would have diluted the other claims as they were not " going to amount to anything." As such, those claims fail.
Regarding claims A and B of the Ineffective Assistance claim, actual innocence and Michela Scalora, this Court finds, relying on its prior analysis and findings in this decision, both that counsel's performance was not deficient and that the petitioner has failed to establish prejudice.
Finally regarding the petitioner's claim that prior habeas counsel was deficient for failure to claim that underlying counsel was ineffective for failing to present the testimony of a crime scene reconstruction expert, the court finds that the petitioner fails on both Strickland prongs.
Attorney Edgington testified credibly that he did not consider retaining an expert crime scene reconstructionist for the prior habeas trial. Instead, he made a strategic decision to rely on the testimony and related evidence of Detective Michaud, testifying that he " felt [the Detective's] crime scene investigation was more than adequate to make the points [he] wanted to make at the habeas trial . . . [there was] no need to question his finding." This Court concurs with underlying habeas and trial counsel's view of the evidence: that this case hinges on the various witnesses and their identifications and testimony as to whether or not the petitioner was the shooter. This Court, based on the whole record, including the testimony of Mr. Massey, finds that there was nothing deficient in not retaining an expert at either the underlying or prior habeas trial and that there is no demonstrated prejudice in that the petitioner has failed to demonstrate that law enforcement's crime scene investigation did not sufficiently contradict Mr. Mautino's version of events so as to allow the fact-finder (both the underlying jury and prior habeas court) to weigh the contradictions as to the position of the shooter on the street in light of the other credible evidence at trial and reach a reliable verdict.
3. Prosecutorial Impropriety
The petitioner asserts, in counts three of the amended petition, that misconduct by the prosecuting authority in closing argument was violative of the petitioner's right to a fair trial. The respondent alleges that the petitioner is barred from submitting these counts to this court because of procedural default. Specifically, the petitioner could have presented this claim on direct appeal or the prior habeas trial but neglected to do so without good cause.
Procedural Default
Under the cause and prejudice criteria of Wainwright, a habeas petitioner is prohibited from raising for the first time claims of legal defects which occurred at the criminal trial level, including constitutional deprivations, unless the habeas petitioner can demonstrate good cause for the default and actual prejudice sustained as a result. Johnson v. Commissioner, 218 Conn. 403, 417, 589 A.2d 1214 (1991). These hurdles also apply equally to claims which could have been presented on direct appeal. Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993).
While ignorance or incompetence of counsel may constitute ineffective assistance which may, and sometimes must, be raised in a habeas action, such ignorance or incompetence of counsel is not good cause under the Wainwright analysis, Johnson v. Commissioner, supra, 422. The existence of good cause for a procedural default either at trial or on appeal must derive from " some objective factor external to the defense [which] impeded [the petitioner's] efforts to comply with the state's procedural rule." Crawford v. Commissioner, 294 Conn. 165, 191, 982 A.2d 620 (2009).
In regards to the prejudice prong of the cause and prejudice standard, a petitioner also must establish that actual prejudice resulted from the error, " infecting his entire trial with error of constitutional dimensions" and denying him " fundamental fairness" at trial. (Internal quotation marks omitted.) Murray v. Carrier, 477 U.S. 478, 494, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). " The showing of prejudice required under Wainwright v. Sykes, [ supra, 433 U.S. 72] is significantly greater than that necessary under the more vague inquiry suggested by the words plain error . . . The habeas petitioner must show not merely that the errors at . . . trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions" (Citations omitted; emphasis in original; internal quotation marks omitted.) Id., 493-94.
In Johnson v. Commissioner, 218 Conn. 403, 589 A.2d 1214 (1991), our Supreme Court adopted the " cause and prejudice" standard espoused by the U.S. Supreme Court in Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), which standard limits the reviewability of claims first raised in a habeas corpus action. In Johnson, supra, the cause and prejudice test was made applicable to procedural defaults which occurred at the trial level. This standard was extended to apply to the failure to raise claims on appeal in Jackson v. Commissioner, 227 Conn. 124, 132, 629 A.2d 413 (1993). The burden of proving good cause and prejudice for procedural default rests with the habeas petitioner, Johnson v. Commissioner, supra, 409.
In this case, the petitioner submitted no credible evidence of any good cause justifying his failure to assert these claims at trial, on appeal, or in the prior habeas trial. Indeed, prior habeas counsel considered and discarded an ineffectiveness claim against direct appeal counsel for the same reason this Court finds such a claim would not have been successful: Namely, that the prosecution's closing arguments were not improper, given the latitude allowed during closing arguments. Additionally, the claim would have been procedurally defaulted at the prior habeas trial. On the merits, there was no error by prior habeas counsel in not pursuing this claim.
Good cause must be external to the defense and be some factor besides attorney error. Jackson v. Commissioner, supra, 137. The mere failure of counsel to recognize the factual or legal ground does not constitute good cause to excuse default. Parker v. Commissioner, 27 Conn.App. 675, 682, 610 A.2d 1305 (1992), cert. denied, 223 Conn. 909, 612 A.2d 57 (1992). Here the petitioner has failed to establish good cause to excuse the default. Accordingly, the petitioner is defaulted on count three of the petition and it is dismissed.
III
Conclusion
For the foregoing reasons, the petition is denied. Judgment shall enter for the respondent.