Adgers v. Warden, No. CV02-0346149 S (CT 9/30/2005)

• Decision Date: 30 September 2005
• Docket Number: No. CV02-0346149 S,CV02-0346149 S
• Court: Connecticut Supreme Court
• Parties: Allen Adgers v. Warden Opinion No.: 90438

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Unpublished Opinion

Allen Adgers v. Warden Opinion No.: 90438

No. CV02-0346149 S

Superior Court of Connecticut

Judicial District of Danbury at Danbury

September 30, 2005

MEMORANDUM OF DECISION

SIDNEY AXELROD, JUDGE TRIAL REFEREE.

This is an eleven-count habeas corpus petition. The original writ of habeas corpus petition dated July 10, 2001 raised various claims of ineffective assistance of counsel as well as accusations against prosecutors and judges. The most recent amendments consist of a nine-count amended complaint dated July 5, 2005 and a tenth count amendment dated July 25, 2005 and an eleven-count amendment dated September 12, 2005. The petitioner listed additional defendants with the amended complaint without them ever having been served. Those defendants included Hartford police, state's attorneys, public defenders, judges and state governor in his wholesale attack on the total judicial system. The first count alleges 42 U.S.C. §1983 equal protection against all defendants. The second count alleges 42 U.S.C. §1983 equal protection against defendants for violation of affirmative action. The third count alleges negligence of defendant's violation jurisdiction into marriage contracts/agreement, covenant. The fourth count alleges recklessness against defendant, violation of function to win at all cost. The fifth count alleges Connecticut General Statutes §§52-557n, 7-101a and 7-465a against defendants. The sixth count alleges ineffective assistance of counsel and conspiracy thereof with the state. The seventh count alleges perjury by state prosecution. The eighth count alleges mitigating circumstances, sentence to bars. The ninth count alleges no registration of plaintiff as offender and no special meeting as condition of parole, etc. The petitioner then added a tenth count amendment dated July 25, 2005 alleging violation of civil right and state constitution Article 6 §10 6th first 8th 14th amendment and due process rights for ineffective counsel/commissioners of the court, law officials and correction. The eleven-count amendment dated September 12, 2005 again attacked the victim in this case and raised issues of evidence. Sprinkled throughout the various amendments are claims of ineffective assistance of counsel.

The court will first address the sixth count, ineffective assistance of counsel and conspiracies thereof with the state.

The best that can be said about the allegations in this count is that they are imaginative although without any factual basis. On May 16, 2001 in the matter of State v. Allen Adgers, Docket No. CR00-0543262 T, Superior Court in the Judicial District of Hartford, the petitioner entered a plea of nolo contendere and was found guilty of one count of kidnapping in the first degree in violation of Connecticut General Statutes §53a-92; one count of assault in the second degree in violation of Connecticut General Statutes §53a-60; two counts of sexual assault in a spousal relationship in violation of Connecticut General Statutes §53a-70b.

The court in Baillargeon v. Commissioner of Correction, 67 Conn.App. 716 (2002), 789 A.2d 1046 stated in part as follows:

For ineffectiveness claims resulting from guilty pleas, we apply the standard set forth in Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), which modified Strickland's prejudice prong. Copas v. Commissioner of Correction, supra, 234 Conn. 156-57. To satisfy the performance prong, the petitioner must "show that counsel's representation fell below an objective standard of reasonableness." Strickland v. Washington, supra, 466 U.S. 688; Aillon v. Meachum, 211 Conn. 352, 357, 559 A.2d 206 (1989). A petitioner who accepts counsel's advice to plead guilty has the burden of demonstrating on habeas appeal "that the advice was not within the range of competence demanded of attorneys in criminal cases." Buckley v. Warden, 177 Conn. 538, 542, 418 A.2d 913 (1979), citing McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). The range of competence demanded is "reasonably competent, or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law." (Internal quotation marks omitted.) Buckley v. Warden, supra, 543. Reasonably competent attorneys may advise their clients to plead guilty even if defenses may exist. State v. Lopez, 197 Conn. 337, 343, 497 A.2d 390 (1985). A reviewing court must view counsel's conduct with a strong presumption that it falls within the "wide range of reasonable professional assistance" and that a tactic that appears ineffective in hindsight may have been sound trial strategy at the time. Strickland v. Washington, supra, 466 U.S. 689.

To satisfy the prejudice prong, the petitioner must show a" reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, supra, 474 U.S. 59; Copas v. Commissioner of Correction, supra, 234 Conn. 156. "Reasonable probability" does not require the petitioner to show that "counsel's deficient conduct more likely than not altered the outcome in the case," but he must establish "a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, supra, 466 U.S. 693-94; Bunkley v. Commissioner of Correction, supra, 222 Conn. 446. The Hill court noted that "[i]n many guilty plea cases, the 'prejudice' inquiry will closely resemble the inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions obtained through a trial. For example, where the alleged error of counsel is a failure to investigate . . . the determination whether the error `prejudiced' the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial."

Hill v. Lockhart, supra, 59; Copas v. Commissioner of Correction, supra, 234 Conn. 156-57; Minnifield v. Commissioner of Correction, 62 Conn.App. 68, 72, 767 A.2d 1262, cert. denied, 256 Conn. 907, 772 A.2d 596 (2001). "A reviewing court can find against a petitioner on either ground, whichever is easier." Valeriano v. Bronson, 209 Conn. 75, 86, 546 A.2d 1380 (1988). (Emphasis provided.)

The petitioner makes two claims regarding the alleged error of counsel in failing to investigate. The first claim is that counsel did not investigate the question of whether the complaining witness had committed fraud upon a state agency. The court finds that the petitioner has not presented any credible evidence regarding the extent that which his attorneys investigated this claim of fraud once he brought it to their attention prior to the date he entered his nolo contendere plea. The court therefore finds that the petitioner has failed to...