Floyd v. Commissioner of Correction

• Decision Date: 13 February 2007
• Docket Number: No. 26567.,26567.
• Citation: 99 Conn.App. 526,914 A.2d 1049
• Parties: Eric FLOYD v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

914 A.2d 1049

99 Conn.App. 526

Eric FLOYD v. COMMISSIONER OF CORRECTION.

No. 26567.

Appellate Court of Connecticut.

Argued October 17, 2006.

Decided February 13, 2007.

Diane Polan, New Haven, with whom, on the brief, was Mary Anne Royle, Vancouver, WA, for the appellant (petitioner).

Frederick W. Fawcett, supervisory assistant state's attorney, with whom, on the brief, were Jonathan C. Benedict, state's attorney, and Gerard P. Eisenman, senior assistant state's attorney, for the appellee (respondent).

SCHALLER, DiPENTIMA and LAVINE, Js.

LAVINE, J.

The petitioner, Eric Floyd, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the court improperly concluded that he failed to prove (1) that he had received ineffective assistance of counsel and (2) that the state had suppressed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In addition, he asserts that the state knowingly used perjured testimony to obtain his conviction. We affirm the judgment of the habeas court.

The relevant facts and procedural history are set forth by our Supreme Court in its decision affirming the petitioner's conviction on direct appeal. State v. Floyd, 253 Conn. 700, 756 A.2d 799 (2000). "In the very early morning on January 21, 1994, Alex Delgado and the victim, Jose Avellanet, were walking on Clinton Avenue in Bridgeport when they were approached by the [petitioner], who held what appeared to be a nine millimeter gun. Delgado had known the [petitioner] for several years. . . . Delgado became aware of the presence of another person, whom he did not recognize. . . . Delgado . . . asked the [petitioner] and the unidentified person to let him and the victim leave. The [petitioner] then fired his gun three or four times at the ground near Delgado's feet. . . . The [petitioner] took Delgado's money and jewelry, and the unidentified person took the victim's money.

"Shortly thereafter, the [petitioner] called out the name `Mickey,' and two men, who were farther up Clinton Avenue and whom Delgado could not identify, started running down the street toward Delgado and the others. At that point, Delgado turned and ran in the opposite direction. As he was running, he heard three or four gunshots flying and ricocheting around him. Delgado also heard the [petitioner] shouting at him. . . . Delgado ran around a corner and, at that point, could no longer see the [petitioner] or the victim. Two other eyewitnesses, however, saw the [petitioner] and Mickey [Lopez] fire multiple gunshots at the victim as he lay on the ground, after Delgado ran away.

"Later that morning . . . paramedics . . . . found the victim lying on the ground and observed that he had sustained multiple gunshot wounds. . . . A subsequent autopsy revealed three gunshot wounds, one of which actually caused the victim's death and another of which potentially was fatal. The medical examiner recovered a nine millimeter bullet from the victim's body. The police recovered four spent nine millimeter cartridge casings, two spent .45 caliber casings and two .45 caliber bullets from the crime scene. . . . [A] criminalist with the Connecticut State Police Forensic Science Laboratory, specializing in the examination of firearms, testified that he believed that the bullets and casings were fired from at least four different weapons. . . .

"[T]he [petitioner] subsequently was charged with the murder of the victim in violation of [General Statutes] § 53a-54a(a), the attempted murder of Delgado in violation of General Statutes §§ 53a-49 and 53a-54a(a) commission of a class A, B or C felony with a firearm in violation of [General Statutes] § 53-202k, and criminal possession of a firearm in violation of [General Statutes] § 53a-217. At the conclusion of the trial, the jury [returned] a verdict of guilty of the crimes of murder, commission of a class A, B or C felony with a firearm, and criminal possession of a firearm. . . ." (Emphasis added; internal quotation marks omitted.) State v. Floyd, supra, 253 Conn. at 703-705, 756 A.2d 799.

Following his unsuccessful appeal, the petitioner filed an amended petition for a writ of habeas corpus. In that petition, he first claimed that his trial counsel, Paul Martin Tymniak, provided ineffective assistance because he failed to investigate, to raise and to develop adequately a third party culpability defense. Tymniak was deceased at the time of the habeas proceeding. At the hearing, the petitioner presented attorney Norman A. Pattis as an expert witness on the level of competency required of a defense attorney. The petitioner's second claim in his petition was that the state failed to disclose exculpatory information in violation of its obligation under Brady. The court rejected both of the claims but later granted the petition for certification to appeal. Additional facts will be set forth as necessary.

I

The petitioner first claims that the court improperly concluded that his trial counsel rendered effective assistance. The petitioner argues that Tymniak failed to investigate, to develop and to pursue adequately a third party culpability defense when he received information suggesting that other individuals were involved in the shooting. We are not persuaded.

"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 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." (Internal quotation marks omitted.) Griffin v. Commissioner of Correction, 97 Conn.App. 200, 202, 903 A.2d 273, cert. denied, 280 Conn. 923, 908 A.2d 543 (2006).

"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.) Toccaline v. Commissioner of Correction, 80 Conn.App. 792, 798, 837 A.2d 849, cert. denied, 268 Conn. 907, 845 A.2d 413, cert. denied sub nom. Toccaline v. Lantz, 543 U.S. 854, 125 S.Ct. 301, 160 L.Ed.2d 90 (2004).

It is well established that we "need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." Griffin v. Commissioner of Correction, 98 Conn.App. 361, 366, 909 A.2d 60 (2006). To prevail on the prejudice prong, the petitioner must demonstrate that "counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable. . . . It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings. . . . Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (Internal quotation marks omitted.) Id.

In the present case, the court denied the petition because the petitioner failed to meet his burden of proving the prejudice prong of Strickland. It reasoned: "[T]here is no question that the three witnesses [to the crime, Delgado, Reginald Berry and Michael Younger], who identified the petitioner as the shooter of the victim, were severely damaging to the petitioner's case. The jury apparently believed them, and with this eyewitness testimony, despite any alleged errors on the part of attorney Tymniak, testimony of these three eyewitnesses would have been sufficient for conviction and, therefore, the petitioner has not sustained his burden of proving that if it were not for the ineffectiveness of trial counsel, there is a reasonable probability that the outcome of the trial would have been different."

At the habeas hearing, the petitioner alleged that he was prejudiced by Tymniak's failure to investigate adequately the possibility that other individuals had been responsible for the shooting, following the disclosure of certain documents prior to trial. Specifically, he claims that Tymniak should have investigated (1) the statement made by an informant that two individuals associated with a gang, "Ito" and "Alex," were involved in the shooting, and (2) the statement made by Luis Troncoso that a man in a yellow house across the street had identified the shooters as "Jimmy" and "Jeff." Moreover, the petitioner argues that he was prejudiced by Tymniak's failure to call two witnesses at the trial, Jesus Davila, who would have testified that Delgado had implicated two different individuals in the murder, and "Mickey," who was identified as a participant in the murder by Younger and the victim's brother, Auggie Avellanet. As stated, however, by the court: "There is no evidence that [the petitioner] could have located any of these witnesses and, if he had, whether they would have talked to him. These individuals were other drug dealers, some of them members of [a] gang, and it is highly unlikely that they would have given him any worthwhile information."

The jury found the petitioner guilty after hearing testimony from three eyewitnesses who identified him as the shooter. Delgado indicated that the petitioner had a nine millimeter gun. Evidence presented at trial revealed that a nine millimeter bullet...