Opinion
CV094003005S.
12-18-2012
Anthony SANTANIELLO v. WARDEN.
UNPUBLISHED OPINION
COBB, J.
The petitioner, Anthony Santaniello, brings this petition for a writ of habeas corpus, alleging that his trial and appellate attorneys were ineffective, and as a result his Sixth Amendment right to counsel was violated. The court finds that the petitioner has failed to establish his claims and, therefore, finds the issues for the respondent.
On January 20, 2004, after a jury trial, the petitioner was found guilty of the following charges in two consolidated cases: (1) in docket number 02-122734, sexual assault in the first degree in violation of General Statutes § 53a-70(a)(1) and kidnapping in the first degree in violation of General Statutes § 53a-92(a)(2)(a); and (2) in in docket number CR 02-125860, attempt to commit murder in violation of General Statutes §§ 53a-49(a)(2) and 53a-54a, inciting injuries to another person in violation of General Statutes § 53a-179a(a), and intimidating a witness in violation of General Statutes § 53a-151a(a)(1). On March 19, 2005, the trial court sentenced the petitioner to twenty years imprisonment on the sexual assault and kidnapping charges and twenty-two years imprisonment on the attempted murder and related convictions. The court ordered the sentences to run consecutively for a total effective sentence of forty-two years imprisonment.
The petitioner appealed his conviction to the Appellate Court and claimed that the trial court improperly (1) abused its discretion in joining and refusing to sever two separate informations, (2) denied the defendant's motion to suppress, (3) failed to conduct an in camera review of documents and (4) refused to consider the defendant's post-verdict letter requesting a new trial. The Appellate Court rejected these claims and affirmed the conviction. State v. Santaniello, 96 Conn.App. 646, 902 A.2d 1, cert. denied, 280 Conn. 920, 908 A.2d 545 (2006).
The Appellate Court found that the jury could reasonably found the following facts:
The victim lived in a single-family dwelling with her daughter and a female friend, S. On January 12, 2002, the defendant and the victim spent part of the day together, and the victim told the defendant that she planned to go to a local pub in the evening. The victim went to the pub at approximately 9 p.m., where she met several friends including the defendant and S. They remained at the pub until it closed at approximately 2 a.m. Thereafter, the victim returned to her apartment alone, where she left the door unlocked in case S returned later and she went to bed. She spoke with the defendant, via the telephone, during the night.
Sometime thereafter, the defendant appeared in the victim's bedroom. He sat on her bed and proceeded to make advances toward her. The victim repeatedly told the defendant to stop, but he became forceful and overcame the victim, removing her sweatpants, tearing her panties and sexually assaulting her. The victim was left bruised and had a rope like burn on her hip where her panties had been torn from her.
When S returned home later that afternoon, she knew that something was wrong with the victim. When S questioned the victim, the victim became emotional and " lost it." She then told S what had happened. S urged the victim to telephone the police, but the victim did not want to report the incident because she was afraid of the defendant. S, however, continued to urge the victim to report the incident, and four days later, the victim filed a complaint with the Enfield police. A forensic examination of the victim's panties revealed a stain that contained the defendant's DNA. The defendant was arrested on February 22, 2002. In an amended long-form information, the defendant was charged with two counts of sexual assault in the first degree, burglary in the first degree and kidnapping in the first degree (sexual assault case).
Following the defendant's arrest, he was incarcerated at the Cheshire Correctional Institute, where he shared a cell with Thomas Marra from May 13 until July 30, 2002. In August 2002, Marra contacted George Nobile, an inspector with the division of criminal justice, informing Nobile that he had a cell mate who wanted to have a witness killed. Nobile and a supervisor, Gregory Dillon, met with Marra on September 4, 2002, and Marra informed them that the defendant wanted to have the victim killed so that she could not testify against him. Marra provided a letter written by the defendant and explained the code words used in the letter. Subsequently, Marra also provided Nobile and Dillon with further correspondence from and to the defendant concerning the defendant's desire to have the victim killed.
On October 9, 2002, Marra telephoned the defendant and told him he could put the defendant in contact with an assassin. Nobile then assumed the undercover role of the assassin and contacted the defendant on October 14 and 18, 2002. Nobile set up a meeting with the defendant for the morning of October 21, 2002, but the defendant did not appear for that meeting.
The defendant was arrested on October 25, 2002, and was held at the Bridgeport Correctional Center, where he shared a cell with Andre Holeman. The defendant told Holeman that he was facing sexual assault charges and that he had wanted the victim killed so that she could not testify against him. He also told Holeman about Marra and his arranging a meeting with an assassin. He further explained to Holeman that he was supposed to pay the assassin $7, 500 to kill the victim but that he did not have the funds and, therefore, was considering killing the victim himself. The defendant also asked Holeman to telephone the defendant's attorney to report that the defendant had been set up by Marra. In an amended long-form information, the defendant was charged with attempt to commit murder, inciting injury to another person and intimidating a witness (attempted murder case).
The petitioner filed this petition for habeas relief on April 15, 2009. In his amended petition, he claims: (1) in count one, that his trial attorney failed to explain the evidence and recommend a plea offer, failed to explain the right to testify and failed to call Dennis Rollins and Michael Pajak as witnesses at trial; and (2) in count two, that his appellate counsel was ineffective in failing to claim that there was insufficient evidence for the attempted murder conviction.
At the habeas trial, the petitioner failed to produce any evidence as to his claims that trial counsel was ineffective in failing to call Jeremy Metevier as a witness at trial, failed to renew a request for an in camera review of all records relating to Tommy Marra and failed to pursue all material relevant to the credibility of Marra and Holeman. Petitioner's counsel withdrew these claims at trial.
As to count three, at the outset of the habeas trial, the parties entered into a stipulation that pursuant to the Supreme Court's decisions in Luurtsema v. Commissioner of Correction, 299 Conn. 740, 12 A.3d 817 (2011) and State v. Salamon, 287 Conn. 509, 949 A.2d 1092 (2008), the petitioner's kidnapping conviction would be restored to the trial docket in the superior court for the Judicial District of Hartford. The petitioner withdrew count four, alleging actual innocence.
DISCUSSION
To establish a claim of ineffective assistance of trial counsel, 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); Strickland v. Washington, 466 U.S. 668, 667, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). " 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 Sixth Amendment.' " Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006), quoting Strickland v. Washington, supra, 466 U.S. at 667. It is not enough for the petitioner to simply prove the underlying facts that his attorney failed to take a certain action. Rather, 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 " counsel" as guaranteed by 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); Giannotti v. Warden, 26 Conn.App. 125, 120, 599 A.2d 26 (1991), cert. denied, 221 Conn. 905, 600 A.2d 1359 (1992).
Under the second prong of the test, prejudice, the petitioner must show that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable. Strickland v. Washington, supra, 466 U.S. at 687; Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009).
Ultimately, the " 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. When assessing 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 689-90.
A. Claims related to trial counsel
The petitioner first claims that his trial attorney, Kevin Randolph, failed to explain the evidence and a plea offer, and that had he done so, the petitioner would have accepted the plea offer and pleaded guilty, forgoing a trial.
The United States Supreme Court has recently held that pretrial negotiations implicating the decision as to whether to plead guilty are a critical stage in criminal proceedings for purposes of the Sixth Amendment right to effective assistance of counsel. Padilla v. Kentucky, 559 U.S. __, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); Missouri v. Frye, 566 U.S. ---- (2012); Lafler v. Cooper, 566 (2012). " Although this decision [to plead guilty] is ultimately made by the defendant, the defendant's attorney must make an informed evaluation of the options and determine which alternative will offer the defendant the most favorable outcome. A defendant relies heavily upon counsel's independent evaluation of the charges and defenses, applicable law, the evidence and the risks and probable outcome of a trial ... Siemon v. Stoughton, 184 Conn. 547, 556 n.3, 440 A.2d 210 (1981)." Copas v. Commissioner of Correction, 234 Conn. 139, 153-54, 662 A.2d 718 (1995). Because the plea bargaining process is a critical stage in a criminal proceeding, " criminal defendants require effective assistance of counsel during plea negotiations." Missouri v. Frye, supra, at 566 U.S. __, Lafler v. Cooper, supra, at 566 U.S. ----. " Anything less ... might deny a defendant ‘ effective representation by counsel at the only stage when legal aid and advice would help him.’ " Missouri v. Frye, supra, at 566 U.S. ---- (internal quotations omitted).
In Missouri v. Frye, supra, at 566 U.S. __, the United States Supreme Court held that: " defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." When defense counsel allows an offer to expire without advising the defendant or allowing him to consider it, defense counsel does not render the effective assistance the Constitution requires. Id. " To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel. Defendants must also demonstrate a reasonable probability the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it, if they had the authority to exercise that discretion under state law. To establish prejudice in this instance, it is necessary to show a reasonable probability that the end result of the criminal process would have been more favorable by reason of a plea to a lesser charge or a sentence of less prison time. Cf. Glover v. United States, 531 U.S. 198, 203 (2001) (" [A]ny amount of [additional] jail time has Sixth Amendment significance")." Missouri v. Frye, supra, at 566 U.S. ----. " In order to complete a showing of Strickland prejudice, defendants who have shown a reasonable probability they would have accepted the earlier plea offer must also show that, if the prosecution had the discretion to cancel it or if the trial court had the discretion to refuse to accept it, there is a reasonable probability neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented." Id.
The Connecticut Supreme Court has, subsequent to Missouri v. Frye and Lafler v. Cooper, addressed claims of ineffective assistance of counsel during pretrial representation. Ebron v. Commissioner of Correction, 307 Conn. 342 (2012). In Ebron, the Supreme Court explained that: " in order to avoid potentially conflicting findings at the prejudice and remedy stages of a habeas proceeding in a lapsed plea case, ... to establish prejudice, a petitioner need establish only that (1) it is reasonably probable that, if not for counsel's deficient performance, the petitioner would have accepted the plea offer, and (2) the trial judge would have conditionally accepted the plea agreement if it had been presented to the court. See State v. Thomas, 296 Conn. 375, 388, 995 A.2d 65 (2010) (‘ [a] trial court lacks the authority to unconditionally accept a guilty plea prior to considering the results of a pending [PSI] report’); see also Practice Book § 43-10 ... We further conclude that, when a habeas court finds prejudice, then, in most cases, that court should order the trial court to determine the proper remedy in light of any information concerning the crime or the petitioner that would have come to light between the acceptance of the plea offer and the imposition of the sentence, such as a PSI report or a victim impact statement ... In our view, the determination of the appropriate remedy will, in most cases, more properly be made by the trial court than by the habeas court because the former generally will have greater experience than the latter in crafting criminal sentences and, in some cases, may have access to information about the petitioner and the crime that is not available to the habeas court." (Footnotes omitted.) Ebron v. Commissioner of Correction, supra, 307 Conn. at 357-59.
The petitioner testified that trial counsel informed him of a court offer of forty years suspended after twenty years followed by a period of probation. The petitioner testified at the habeas trial that trial counsel told him that the state " did not have a case" and that the petitioner could " beat" the charges. Relying on that advice, the petitioner claims he chose to reject the plea offer and proceed to trial.
Trial counsel testified that when he discussed the offer with the petitioner, he went over the state's evidence with him and explained that there was substantial evidence against him. Trial counsel never told the petitioner that the state did not have a case. According to trial counsel, the petitioner was not interested in any offer, and rejected the court's offer.
The court finds the petitioner's testimony incredible and credits trial counsel's testimony that he relayed the offer and properly explained the state's evidence. Accordingly, the petitioner has failed to prove that trial counsel's conduct was deficient. Because the court has determined that the petitioner has failed to establish deficient performance, it is unnecessary for the court to determine the second prong of the Strickland test— whether petitioner was prejudiced. See Fernandez v. Commissioner of Correction, 291 Conn. 830, 835, 970 A.2d 721 (2009) (" [t]he claim [ineffective assistance of counsel] will succeed only if both prongs are satisfied ... [A] reviewing court can find against a petitioner on either ground, whichever is easier" [citation omitted; internal quotation marks omitted]).
Petitioner next claims that trial counsel failed to explain his right to testify, and but for that deficiency, he would have testified at trial.
" It is the right of every criminal defendant to testify on his own behalf; Rock v. Arkansas, 483 U.S. 44, 49, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); and to make that decision after full consultation with trial counsel. See State v. Davis, , 93, 506 A.2d 86 (1986). Equally axiomatic is the proposition that an accused must take some affirmative action regarding his right to testify. United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S.Ct. 139, 88 L.Ed.2d 115 (1985); State v. Paradise, 213 Conn. 388, 405, 567 A.2d 1221 (1990)." Ostolaza v. Warden, 26 Conn.App. 758, 763, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 62 (1992).
Here the court credits the testimony of petitioner's trial counsel, who testified that he advised the petitioner not to testify because if he did so, he would be impeached with his prior criminal convictions. He told the petitioner, however, that it was his right to testify and his decision whether or not to do so. The petitioner decided not to testify. The petitioner was also canvassed by the court as to his right to testify. See Ghant v. Commissioner of Correction, 255 Conn. 1, 11-12, 761 A.2d 740 (2000) (canvass must insure waive of right to trial is voluntary, knowing and intelligent; no requirement to specifically canvass about right to testify).
Here, the petitioner exercised his right not to testify after being properly advised by his counsel and canvassed by the trial court. Accordingly, the court finds that the petitioner has failed to prove that trial counsel's advice regarding the right to testify at trial was deficient. Having found no deficiency as to this claim, it is unnecessary for the court to determine prejudice. See Fernandez v. Commissioner of Correction, supra, 291 Conn. at 835.
The petitioner next claims that trial counsel's conduct was ineffective because he failed to call two witnesses at trial, Dennis Rollins and Michael Pajak. The court rejects these claims.
" ‘ The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance unless there is some showing that the testimony would have been helpful in establishing the asserted defense. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.’ State v. Talton, 197 Conn. 280, 297-98, 497 A.2d 35 (1985)." Vines v. Commissioner of Correction, 94 Conn.App. 288, 296, 892 A.2d 312, cert. denied, 278 Conn. 922, 901 A.2d 1222 (2006). " [T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment ..." (Citation omitted.) Iovieno v. Commissioner of Correction, 67 Conn.App. 126, 128, 786 A.2d 1113 (2001), cert. denied, 259 Conn. 916, 792 A.2d 851 (2002); Vines v. Commissioner of Correction, supra, 94 Conn.App. at 297.
Dennis Rollins testified at the habeas trial that he is the petitioner's friend and at the time of the assault, lived next door to the victim. On the evening of the assault, Rollins saw the petitioner in front of the victim's house at 1 a.m. and spoke to the petitioner at the end of his driveway. He also saw the petitioner go into the victim's house, however, he did not enter the victim's home and, therefore, did not witness what went on in the victim's home. He also testified that several weekends before the assault he saw the petitioner's car in the victim's driveway and saw the petitioner and the victim holding hands.
Trial counsel testified that he was aware of Rollins and had had his investigator speak to him. When trial counsel tried to locate Rollins a second time for the purpose of the trial, Rollins could not be located. Trial counsel was concerned that Rollins did not want to testify at the trial and that his testimony could be adverse to the petitioner. In addition, trial counsel did not believe that he needed Rollins to testify that the victim called the petitioner to come over because he had better evidence to establish this fact, the petitioner's phone records that showed that the victim called the petitioner the evening of the assault. When the victim testified at trial in the state's case, she said she did not recall calling the petitioner. Trial counsel impeached her with the phone records which demonstrated that the victim had in fact initiated a call to the petitioner, which supported defendant's defense that the sexual contact was consensual.
The court finds trial counsel's decision not to call Rollins as a trial witness was a tactical one that was objectively reasonable. Moreover, the petitioner has not demonstrated that he was prejudiced by the failure of Rollins to testify at trial.
As to Michael Pajak, who also testified at the habeas trial, the petitioner claims that he should have been called as a witness to testify that the victim and the petitioner had a relationship on and off since high school and that he had seen them holding hands and kissing within two months of the assault. The court does not credit this testimony, as Mr. Pajak has had been the petitioner's friend since he was ten years old and has a number of convictions for crimes involving dishonesty. Pajak was not therefore a neutral disinterested witness. See Sanchez v. Commissioner of Correction, 138 Conn.App. 594, 600-01 (2012). Even if credited, it is not reasonably probably that such testimony would have resulted in a different trial outcome.
Moreover, the petitioner has not proved that trial counsel was even aware of Mr. Pajak or what he would say prior to the trial. In fact, trial counsel was not aware that the petitioner and the victim had a sexual relationship at the time of the assault. The petitioner had told him that they did not, and that they were just friends at the time. Defense counsel will be deemed ineffective only when it is shown that a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must be evaluated not through hindsight but from the perspective of the attorney when he was conducting it.' State v. Talton, [ supra, 197 Conn. at 297-98]." Vines v. Commissioner of Correction, supra, 94 Conn.App. at 296.
Accordingly, the petitioner has not proved that counsel was deficient in failing to call Michael Pajak at trial.
B. Claim related to appellate counsel
The petitioner asserts that his appellate counsel was ineffective in failing to claim on appeal that there was insufficient evidence to support a conviction for attempted murder because there was no evidence that the petitioner took a " substantial step" in furtherance of the crime. The petitioner presented absolutely no evidence on this claim at the habeas trial and claims that no evidence was necessary because it is a " legal" claim that can be resolved by the habeas court without any evidence. The court rejects this claim.
It is now established that: " [a] criminal defendant's right to the effective assistance of counsel extends through the first appeal of right and is guaranteed by the sixth and fourteenth amendments to the United States constitution and by article first, § 8, of the Connecticut constitution. See, e.g., Evitts v. Lucey, 469 U.S. 387, 394, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); In re Christina M., 280 Conn. 474, 489, 908 A.2d 1073 (2006)." Small v. Commissioner of Correction, 286 Conn. 707, 712-13, 946 A.2d 1203 (2008), cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). To succeed on a claim of ineffective assistance of counsel of appellate 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). Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746 (2000). " Strickland requires that a petitioner satisfy both ‘ a " performance prong" and a " prejudice prong." 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." [ Id. ] To satisfy the " prejudice prong, " a claimant must demonstrate that " there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. The claim will succeed only if both prongs are satisfied.' Ledbetter v. Commissioner of Correction, 275 Conn. 451, 458, 880 A.2d 160 (2005), cert. denied sub nom. Ledbetter v. Lantz, 546 U.S. 1187, 126 S.Ct. 1368, 164 L.Ed.2d 77 (2006)." Small v. Commissioner of Correction, supra, 286 Conn. at 713. For claims of ineffective assistance of appellate counsel, the habeas court must determine " whether there is a reasonable probability that, but for appellate counsel's failure to raise the issue on appeal, the petitioner would have prevailed in his direct appeal, i.e., reversal of his conviction or granting of a new trial ... [T]o determine whether a habeas petitioner had a reasonable probability of prevailing on appeal, a reviewing court necessarily analyzes the merits of the underlying claimed error in accordance with the appropriate appellate standard for measuring harm." Small v. Commissioner of Correction, supra, 286 Conn. at 722; Moody v. Commissioner of Correction, 127 Conn.App. 293, 301, 14 A.3d 408 (2011); see also Smith v. Robbins, supra, 528 U.S. at 285.
In assessing any ineffective assistance claim, the Connecticut Supreme Court has held that: " [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 ..." Johnson v. Commissioner of Correction, 131 Conn.App. 805, 808-9, 29 A3d 166 (2011).
The issue raised here, the failure of an appellate counsel to raise an issue on appeal, is subject to habeas review. Mayo v. Henderson, 13 F.3d 528 (2nd Cir.1994); Small v. Commissioner of Correction, supra, 286 Conn. at 713; Gipson v. Commissioner of Correction, 257 Conn. 632, 634, 778 A.2d 121 (2001); Sekou v. Warden, 216 Conn. 678, 583 A.2d 1277 (1990); Valeriano v. Bronson, 209 Conn. 75, 546 A.2d 1380 (1988). " Were it legitimate to dismiss a claim of ineffective assistance of counsel on appeal solely because we found it improper to review appellate counsel's choice of issues, the right to effective assistance of counsel on appeal would be worthless." Gray v. Greer, 800 F.2d 644, 646 (7th Cir.1985).
Although subject to habeas review, claims related to appellate counsel's failure to raise a particular nonfrivilous claim are difficult to establish. The United States Supreme Court in Smith v.. Robbins, supra, 528 U.S. at 288, explained: " In Jones v. Barnes, 463 U.S. 745 (1983), we held that appellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal. Notwithstanding Barnes, it is still possible to bring a Strickland claim based on counsel's failure to raise a particular claim, but it is difficult to demonstrate that counsel was incompetent."
The Connecticut Supreme Court has found similarly with respect to assessing habeas claims against appellate counsel. " The right to counsel is not the right to perfect representation ... [Although] an appellate advocate must provide effective assistance, he is not under an obligation to raise every conceivable issue. A brief that raises every colorable issue runs the risk of burying good arguments ... in a verbal mound made up of strong and weak contentions ... Indeed, [e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues ... Most cases present only one, two, or three significant questions ... The effect of adding weak arguments will be to dilute the force of the stronger ones ... Finally, [i]f the issues not raised by his appellate counsel lack merit, [the petitioner] cannot sustain even the first part of this dual burden since the failure to pursue unmeritorious claims cannot be considered conduct falling below the level of reasonably competent representation." (Internal quotation marks omitted.) Bailey v. Commissioner of Correction, 107 Conn.App. 362, 366-67, 947 A.2d 2, cert. denied, 287 Conn. 922, 951 A.2d 568 (2008) ." Johnson v. Commissioner of Correction, supra, 131 Conn.App. at 808-9. " It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment." Valeriano v. Bronson, 209 Conn. 75, 87, 546 A.2d 1380 (1988). See also, Vivo v. Commissioner of Correction, 90 Conn.App. 167, 172, 876 A.2d 1216, cert. denied, 275 Conn. 925, 883 A.2d 1253 (2005).
In determining habeas standards, Connecticut courts often look to federal habeas decisional law for guidance. Lebron v. Commissioner of Correction, 274 Conn. 507, 523-25, 876 A.2d 1178 (2005) (" The history of our own jurisprudence is wholly in accord with these [federal habeas] principles"); Crawford v. Commissioner of Correction, 294 Conn. 165, 181-82, 982 A.2d 620 (2009) (" [O]ur own jurisprudence concerning habeas corpus procedural defaults has developed in tandem with federal habeas corpus jurisprudence"); Vincenzo v. Warden, 26 Conn.App. 132, 135-37, 599 A.2d 31 (1991) (state habeas corpus jurisprudence wholly in accord with the principles embodied in federal habeas corpus jurisprudence).
In Gray v. Greer, 800 F.2d 644 (7th Cir.1985), cited by the United States Supreme Court in Smith v. Robbins, 528 U.S. 288, supra, the Seventh Circuit Court of Appeals explained: " When a claim of ineffective assistance of counsel is based on failure to raise viable issues, the district court must examine the trial court record to determine whether appellate counsel failed to present significant and obvious issues on appeal. Significant issues which could have been raised should then be compared to those which were raised. Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome." See also Mayo v. Henderson, 13 F.3d 528, 532 (2nd Cir.1994) (" a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker"). " It is possible to leave out a dispositive issue on appeal and nevertheless, to have furnished a petitioner with adequate counsel under the sixth amendment." Valeriano v. Bronson, supra, 209 Conn. at 87.
Based on these standards, to prove a claim of ineffective assistance of appellate counsel, the petitioner must produce evidence to establish what issues were raised on appeal, what issues could have been raised, and why certain issues were chosen over others so that the court can determine whether appellate counsel's selection of appellate issues was objectively reasonable. No such evidence was produced here by the petitioner. In fact, the petitioner produced no testimony whatsoever on this claim.
To prevail on this claim, without any testimonial or expert evidence, the petitioner would have to show that it is wholly apparent on the record that appellate counsel missed a clear winning and obvious appellate issue. The petitioner claims that this case is on all fours with State v. O'Neil, 65 Conn.App. 145, 153, 782 A.2d 209 (2001), affirmed 262 Conn. 295, 811 A.2d 1288 (2003), where the Appellate Court held that " a mere solicitation" cannot constitute an attempt to commit murder. In O'Neil, the evidence against the defendant consisted of a coded letter written by the defendant to an associate, requesting that the victim be killed. That letter was intercepted by prison officials and was never delivered.
The petitioner's assertion that this case is " remarkably similar" to O'Neil is simply incorrect. The State had substantially more evidence to support the attempted murder charge including providing the name, address and car of the victim, phone calls between the petitioner and an undercover officer, who petitioner believed to be the " hit man" discussing payment and a meeting. This evidence constituted sufficient evidence of a " substantial step" in an attempt to commit murder. State v. Damato, 105 Conn.App. 335, 343-45, 937 A.2d 1232, cert. denied, 286 Conn. 920, 949 A.2d 481 (2008) (defendant's knowledge of victim's unlisted address and frequented restaurant proof of following or reconnoitering; sufficient substantial step to show attempted murder).
Thus it is not obvious that this issue— the sufficiency of the evidence of attempted murder— should have been raised on appeal by appellate counsel. The court therefore concludes that the petitioner has failed to meet his burden to prove this claim.
CONCLUSION
For all of the foregoing reasons, the petition is denied. Judgment shall enter for the respondent. So ordered.