Davis v. Comm'r of Corr., 32883.

• Decision Date: 05 February 2013
• Docket Number: No. 32883.,32883.
• Citation: 59 A.3d 403,140 Conn.App. 597
• Court: Connecticut Court of Appeals
• Parties: Travis DAVIS v. COMMISSIONER OF CORRECTION.

140 Conn.App. 597

59 A.3d 403

Travis DAVIS

v.COMMISSIONER OF CORRECTION.

No. 32883.

Appellate Court of Connecticut.

Argued Oct. 11, 2012.

Decided Feb. 5, 2013.

Justine F. Miller, for the appellant (petitioner).

Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Sean P. McGuinness, deputy assistant state's attorney, for the appellee (respondent).

GRUENDEL, ALVORD and BEAR, Js.

BEAR, J.

The petitioner, Travis Davis, appeals following the habeas court's granting of his petition for certification to appeal from its judgment denying his amended second petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly rejected his claim of ineffective assistance of habeas counsel in his first habeas proceeding and improperly concluded that the petitioner failed to prove that the state suppressed evidence favorable to him at his criminal trial in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). We affirm the judgment of the habeas court.

The following facts and procedural history are relevant to our disposition of the petitioner's claims. As recited by this court in State v. Davis, 51 Conn.App. 171, 721 A.2d 146 (1998), the jury reasonably could have found the following facts. “On March 8, 1994, the New Haven police department was informed that the [petitioner], for whom the department had an outstanding arrest warrant, was standing at the corner of Chapel and Day Streets in New Haven. The officers had been given a physical description of the [petitioner], and were warned that he was believed to be armed and dangerous. A number of plainclothes officers converged on the location in two cars. After two officers exited the first car, approached the [petitioner] and identified themselves as police officers, the [petitioner] turned to look at them and then ran east on Chapel Street. The two officers, joined by officers from the second car, ran after the [petitioner]. During the pursuit, Detective–Sergeant Michael Sweeney was the officer closest to the [petitioner]. At some point during the pursuit, the [petitioner] pulled a gun from his waistband and kept it pointed toward the ground. Soon thereafter, the [petitioner] turned to look back at the officers, raised his gun and pointed it at Sweeney. Another detective yelled, ‘Mike, he's got a gun,’ prompting Sweeney to shoot the [petitioner], who fell to the ground. The police recovered the [petitioner's] semiautomatic nine millimeter pistol. The hammer was in the firing position with a round in the chamber and a full magazine of ammunition.” Id., at 174–75, 721 A.2d 146. The petitioner was arrested and, following a jury trial, the petitioner was convicted of attempt to commit assault in the first degree in violation of General Statutes §§ 53a–49 (a)(2) and 53a–59 (a)(1), attempt to commit assault of a peace officer in violation of General Statutes §§ 53a–49 (a)(2) and 53a–167c (a)(1), commission of a class A, B or C felony with a firearm in violation of General Statutes § 53–202k and criminal possession of a pistol in violation of General Statutes § 53a–217. Id., at 172–73, 721 A.2d 146. He also was found guilty of being a persistent dangerous felony offender in violation of General Statutes § 53a–40 (a) and being a persistent serious felony offender in violation of § 53a–40 (b). Id., at 173, 721 A.2d 146. On direct appeal, this court reversed the conviction on the charges of being a persistent dangerous felony offender and committing a class A, B or C felony with a firearm. Id., at 174, 721 A.2d 146.

The petitioner filed a petition for a writ of habeas corpus alleging ineffective assistance of trial counsel that was decided on February 24, 2000. ¹ On March 1, 1999, the first day of the first habeas proceeding, the court granted the petitioner's request to proceed as a self-represented party and to have his habeas counsel, attorney Raymond Rigat, serve as standby counsel. The first habeas court denyied the petition for a writ of habeas corpus. It does not appear that the petitioner filed a petition for certification to appeal.

On April 30, 2010, the petitioner filed a second amended petition for a writ of habeas corpus (second habeas petition) alleging ineffective assistance of trial counsel, ineffective assistance of habeas counsel, a violation of his due process rights due to the alleged suppression of evidence and a violation of his due process rights due to the alleged destruction of potentially exculpatory evidence. On May 3, 2010, the state filed a pretrial motion to dismiss the counts alleging ineffective assistance of trial counsel, ineffective assistance of habeas counsel and the due process violation arising from the alleged destruction of potentially exculpatory evidence. During the second habeas trial, the court granted the state's motion to dismiss as to the count alleging ineffective assistance of trial counsel, and the petitioner withdrew with prejudice the count alleging a violation of his due process rights arising from the alleged destruction of potentially exculpatory evidence. The petitioner's second habeas trial was held on May 3 and 4, 2010. On June 16, 2010, the second habeas court issued its memorandum of decision in which it denied the second habeas petition. On October 20, 2010, the second habeas court granted the petitioner's petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that that second habeas court improperly rejected his claim of ineffective assistance of habeas counsel in the first habeas proceeding ² and improperly concluded that the petitioner had failed to prove that the state suppressed evidence favorable to the petitioner in his underlying criminal trial.

IINEFFECTIVE ASSISTANCE OF HABEAS COUNSEL

The petitioner first claims that the second habeas court improperly rejected his claim of ineffective assistance of his habeas counsel in his first habeas proceeding. Specifically, the petitioner claims that he was deprived of the effective assistance of his habeas counsel because his habeas counsel failed to conduct an adequate pretrial investigation and was unprepared for trial. The petitioner asserts that because of his first habeas counsel's lack of preparation, he was compelled to proceed as a self-represented party. Additionally, he asserts that he would have prevailed at his first habeas proceeding if his counsel had located and presented certain evidence that he claims would have raised a reasonable doubt about his guilt. We disagree.

“We set forth the appropriate standard of review for a challenge to a denial of a petition for a writ of habeas corpus when certification to appeal is granted. The conclusions reached by the [habeas] court in its decision to [deny a] habeas petition are matters of law, subject to plenary review.... [When] the legal conclusions of the court are challenged, [the reviewing court] must determine whether they are legally and logically correct ... and whether they find support in the facts that appear in the record.... To the extent that factual findings are challenged, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous.... [O]ur review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.... The habeas judge, as the trier of facts, is the sole arbiter of the credibility of witnesses and the weight to be given to their testimony.” (Citation omitted; internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn.App. 291, 294, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011).

“A habeas petitioner can prevail on a constitutional claim of ineffective assistance of counsel [only if he can] establish both (1) deficient performance, and (2) actual prejudice.... For ineffectiveness claims resulting from guilty verdicts, we apply the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).... To satisfy the performance prong, the petitioner must show that counsel's representation fell below an objective standard of reasonableness.... A reviewing court must view counsel's conduct with a strong presumption that it falls within the wide range of reasonable professional assistance.... To satisfy the prejudice prong for ineffective assistance claims resulting from guilty verdicts, the petitioner must demonstrate that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Internal quotation marks omitted.) Trotter v. Commissioner of Correction, 139 Conn.App. 653, 658, 56 A.3d 975 (2012). “Constitutionally adequate assistance of counsel includes competent pretrial investigation.” Siemon v. Stoughton, 184 Conn. 547, 554, 440 A.2d 210 (1981).

“[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 [his] 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....

“A convicted [petitioner's] claim that counsel's assistance was so defective as to require reversal of a conviction ... has two components. First, the [petitioner] must show that counsel's performance was deficient.... Second, the [petitioner] must show that the deficient performance prejudiced the defense. Unless a [petitioner] makes both showings, it cannot...