Abrahams v. Warden

• Decision Date: 12 July 2017
• Docket Number: CV144006053S
• Court: Connecticut Superior Court
• Parties: David Abrahams #241224 v. Warden

David Abrahams #241224 v. Warden

No. CV144006053S

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

July 12, 2017

UNPUBLISHED OPINION

MEMORANDUM OF DECISION

Vernon D. Oliver, J.

The petitioner, DAVID ABRAHAMS, initiated this fourth petition for a writ of habeas corpus, claiming that both his first habeas appellate counsel, second and third habeas counsel provided him ineffective legal representation. He seeks an order of this court vacating his convictions, restoring the matter to the criminal docket for further proceedings and ordering his release. The respondent denies the claims. Based upon the evidence adduced at trial, the court finds the issues for the respondent and denies the petition.

I Procedural History

The petitioner was originally charged in State of Connecticut v. David Abrahams, docket number DBD-CR00-0110691-S and D03-CR97-0131949-T, in the Danbury Judicial District. On October 21, 2001, the petitioner was convicted of attempt to commit murder; criminal possession of a firearm; commission of a B felony with a firearm; and a violation of probation. On December 7, 2001, the trial court, White, J., imposed a total effective sentence of fifty-one years of incarceration followed by nine years special parole. The petitioner was represented at trial by attorney Joseph Romanello.

The Appellate Court affirmed the judgment on appeal. State v Abrahams, 79 Conn.App. 767, 831 A.2d 299 (2003). The petitioner was represented by attorney Lisa Steele.

The petitioner's first writ for a petition of habeas corpus CV02-0461618, was denied by the court, Demayo, J., after trial. The petitioner was represented by attorney Bruce McIntyre. The appeal, A.C. 26832, was withdrawn. The petitioner was represented by attorney John Drapp.

The petitioner's second habeas petition, CV04-4000012 wherein the petitioner was represented by attorney Salvatore Adamo, was denied by the court, Swords, J., after trial. The appeal, A.C. 29965, wherein the petitioner was represented by attorney Matthew Collins, was dismissed.

The petitioner's third habeas petition, CV10-4003316, wherein the petitioner was represented by attorney Justine Miller, was denied by the court, Sferrazza, J., after trial. The appeal, A.C. 35248, was dismissed. The petitioner was represented by attorney Heather Golias. The Connecticut Supreme Court, SC 130403, denied the certification to appeal.

In this fourth petition for a writ of habeas corpus, the petitioner claims that his right to effective legal representation related to his first habeas appeal was denied because attorney Drapp withdrew said appeal. He claims that, absent attorney Drapp's alleged ineffectiveness, his appeal would have been successful, his first petition would have been granted and he would have received a new trial. At closing argument, the petitioner requested relief in the form of having his appellate rights restored.

II Discussion

" A criminal defendant's right to the effective assistance of counsel . . . is guaranteed by the sixth and fourteenth amendments to the United States Constitution and by article first, § 8, of the Connecticut Constitution . . . To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." (Citations omitted.) Small v. Commissioner of Correction, 286 Conn. 707, 712, 946 A.2d 1203, cert. denied, 555 U.S. 975, 129 S.Ct. 481, 172 L.Ed.2d 336 (2008). The petitioner has the burden to establish that " (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008), citing Strickland v. Washington, supra, 466 U.S. 694.

" 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. 689. The United States Supreme Court explained:

A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy . . . There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.

(Citation omitted; internal quotation marks omitted.) Id., 689.

Ultimately, " [t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, supra, 466 U.S. 686.

III Attorney Drapp

The petitioner asserts that attorney Drapp, his assigned first habeas appellate counsel, was ineffective in withdrawing the appeal. The credible evidence supports this court's conclusion that this unequivocal order came from the petitioner. The petitioner now asserts in closing argument that counsel was under an obligation to inform the petitioner that he could have proceeded with the appeal as a self-represented litigant.

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 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, 145 L.Ed.2d 756 (2000). " Strickland requires that a petitioner satisfy both 'a " performance prong" and a " prejudice prong." 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. 713.

" In order to satisfy the performance prong, the petitioner must show that appellate counsel's representation fell below an objective standard of reasonableness considering all of the circumstances." (Internal quotation marks omitted.) Santaniello v. Commissioner of Correction, 152 Conn.App. 583, 587, 99 A.3d 1195 (2014).

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...