Diaz v. Comm'r of Correction, No. 30919.

• Citation: 6 A.3d 213,125 Conn.App. 57
• Decision Date: 16 November 2010
• Docket Number: No. 30919.
• Parties: Daniel DIAZ v. COMMISSIONER OF CORRECTION.
• Court: Appellate Court of Connecticut

6 A.3d 213

125 Conn.App. 57

Daniel DIAZ

v.COMMISSIONER OF CORRECTION.

No. 30919.

Appellate Court of Connecticut.

Argued Sept. 14, 2010.

Decided Nov. 16, 2010.

Michael Zariphes, special public defender, for the appellant (petitioner).

Timothy F. Costello, assistant state's attorney, with whom, on the brief, were Scott J. Murphy, state's attorney, and Kelly A. Masi, assistant state's attorney, for the appellee (respondent).

ROBINSON, ALVORD and PETERS, Js.

ALVORD, J.

The petitioner, Daniel Diaz, appeals from the judgment of the habeas court denying his petition for writ of habeas corpus. On appeal, the petitionerclaims that the court improperly denied his claim of ineffective assistance of trial counsel with respect to counsel's failure (1) to call a witness, Michael Rosado,¹ who might have provided exculpatory testimony, and (2) to test independently the narcotics he was convicted of possessing or to present evidence regarding their odor. Additionally, the petitioner argues that the habeas court improperly found that his remaining argument was barred by the doctrine of res judicata. We agree that the court incorrectly applied the doctrine of res judicata. Nevertheless, we conclude that the court properly denied the petition. Accordingly, we affirm the judgment of the habeas court, albeit on different grounds.

Following a trial to the jury, the petitioner was convicted of possession of narcotics with the intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a-278 (b), possession of narcotics with intent to sell within 1500 feet of a public housing project in violation of General Statutes § 21a-278a (b), possession of narcotics in violation of General Statutes § 21a-279 (a) and interfering with a police officer in violation of General Statutes § 53a-167a (a).² State v. Diaz, 86 Conn.App. 244, 246, 860 A.2d 791 (2004), cert. denied, 273 Conn. 908, 870 A.2d 1081 (2005). On May 17, 2002, the petitioner was sentenced to an effective term of eighteen years imprisonment.

The petitioner appealed from the judgment of conviction to this court, claiming that (1) the evidence was insufficient to sustain his conviction under §§ 21a-278b) and 21a-278a (b) because the state failed to establish that he had intended to sell the narcotics, and (2) the trial court made an improper statement during its final charge to the jury that impinged on his due process rights.³ Id. On direct appeal, this court held that (1) the evidence was sufficient to support the conviction and (2) the trial court's comment, although improper, constituted harmless error. Id., at 250, 259, 860 A.2d 791.

On September 15, 2008, the petitioner filed an amended petition for a writ of habeas corpus, alleging, inter alia, that his conviction should be set aside due to ineffective assistance of his trial counsel, Hisham Leil.⁴ In support of his claim, the petitioner argued that Leil performed below the level of reasonable competence required of a criminal defense attorney because he failed (1) to object to the improper statement made by the court during the charge to the jury, (2) to call Rosado, who might have provided exculpatory evidence,⁵ and (3) to test the narcotics independently for genuineness or to present evidence regarding their odor. The petitioner claims that Leil's acts and omissions contributed significantly enough to his conviction so as to have deprived him of his rights to effective assistance of counsel and to a fair trial.

The habeas court denied the petition. It found that the first claim was precluded under the doctrine of res judicata by the decision of this court on direct appeal that the trial court's statement, though improper, was harmless error. The habeas court also found that the petitioner had not met his burden to provide evidence that (1)Rosado's testimony would have been exculpatory instead of cumulative, (2) it was not the petitioner's personal decision to proceed without Rosado, (3) independent testing of the substance would have altered the disposition of the case or (4) Leil's decision not to test the substance in question was deficient based on the theory of the defense. The petitioner now appeals from the judgment of the habeas court.

In this habeas appeal, the petitioner's three arguments in support of a finding of ineffective assistance of counsel duplicate those raised at the habeas trial. He argues that the court erred when it found that Leil did not render ineffective assistance of counsel by failing (1) to object to the trial court's improper comment, (2) to call a witness that might have aided the defense and (3) to have the narcotics tested or to present evidence regarding their odor. We agree with the habeas court that the petitioner cannot prevail on the second or third claims because the record does not demonstrate that his counsel's actions were deficient. While we disagree with the court's application of the doctrine of res judicata, we determine that the precluded claim fails as a matter of law and affirm the judgment denying the habeas petition.

As an initial matter, we set forth the standard of review. "Our standard of review of a habeas court's judgment on ineffective assistance of counsel claims is well settled. In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review ofwhether 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....

"In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction.... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." (Internal quotation marks omitted.) Necaise v. Commissioner of Correction, 112 Conn.App. 817, 820-21, 964 A.2d 562, cert. denied, 292 Conn. 911, 973 A.2d 660 (2009).

"[J]udicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.... 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." (Internal quotationmarks omitted.) Grant v. Commissioner of Correction, 121 Conn.App. 295, 304, 995 A.2d 641, cert. denied, 297 Conn. 920, 996 A.2d 1192 (2010).

I

The petitioner's first claim is that the habeas court erred in applying the doctrine of res judicata. Specifically, the petitioner argues that on direct appeal he challenged a due process violation by the court, a right arising from the fourteenth amendment and subject to harmless error analysis. In contrast, in his habeas petition, the petitioner claimed that he was denied his right to effective assistance of counsel, an altogether separate right, which arises under the sixth amendment and requires Strickland review. We agree with the petitioner that the doctrine of res judicata does not apply in the present case. Nonetheless, we conclude that the record shows that the petitioner's claim of ineffective assistance of counsel fails as a matter of law and that the denial of the petition was proper.⁶

A

The petitioner cites Kearney v. Commissioner of Correction, 113 Conn.App. 223, 965 A.2d 608 (2009), to illustrate the limited application of res judicata to habeas proceedings.⁷ "The doctrine of res judicata provides that a former judgment serves as an absolute barto a subsequent action involving any claims relating to such cause of action which were actually made or which might have been made.... The doctrine ... applies to criminal as well as civil proceedings and to state habeas corpus proceedings.... However, [u]nique policy considerations must be taken into account in applying the doctrine of res judicata to a constitutional claim raised by a habeas petitioner.... Specifically, in the habeas context, in the interest of ensuring that no one is deprived of liberty in violation of his or her constitutional rights ... the application of the doctrine of res judicata ... [is limited] to claims that actually have been raised and litigated in an earlier proceeding." (Internal quotation marks omitted.) Id., at 233, 965 A.2d 608, quoting Johnson v. Commissioner of Correction, 288 Conn. 53, 66-67, 951 A.2d 520 (2008).

In Kearney, the doctrine of res judicata precluded a claim that was previously litigated fully and adjudicated on its merits in an earlier habeas proceeding. Kearney v. Commissioner of Correction, supra, 113 Conn.App. at 233, 965 A.2d 608. Likewise, in the primary case it cites on this issue, Johnson v. Commissioner of Correction, supra, 288 Conn. at 66, 951 A.2d 520, the principles of res judicata prevented a claim from...