Francis v. Comm'r of Corr., 33427.

• Decision Date: 14 May 2013
• Docket Number: No. 33427.,33427.
• Citation: 142 Conn.App. 530,66 A.3d 501
• Parties: Ernest FRANCIS v. COMMISSIONER OF CORRECTION.
• Court: Connecticut Court of Appeals

142 Conn.App. 530

66 A.3d 501

Ernest FRANCIS

v.COMMISSIONER OF CORRECTION.

No. 33427.

Appellate Court of Connecticut.

Argued Jan. 14, 2013.

Decided May 14, 2013.

Michael Stone, assigned counsel, for the appellant (petitioner).

Margaret Gaffney Radionovas, senior assistant state's attorney, with whom, on the brief, were Gail P. Hardy, state's attorney, and Jo Anne Sulik, senior assistant state's attorney, for the appellee (respondent).

DiPENTIMA, C.J., and BEACH and PELLEGRINO, Js.

PELLEGRINO, J.

The petitioner, Ernest Francis, appeals from the judgment of the habeas court denying his petition for a writ of habeas corpus. On appeal, the petitioner claims that the habeas court improperly rejected his claims of ineffective assistance of counsel. We affirm the judgment of the habeas court.

The petitioner's conviction was the subject of a direct appeal. See State v. Francis, 228 Conn. 118, 119, 635 A.2d 762 (1993). In affirming the conviction, our Supreme Court set forth the following facts: “On March 8, 1990, the [petitioner] and the victim were incarcerated at the Hartford community correctional center. The two men became involved in an altercation during which the victim and several other inmates attacked the [petitioner]. During the course of this altercation, the [petitioner] was stabbed in his leg with a shank, a prison term for a homemade weapon. The [petitioner] believed that it was the victim who had stabbed him. Both men were subsequently released from custody.

“On August 12, 1990, the [petitioner] and the victim met again. At approximately 4 p.m. on that day, two witnesses, Jennifer Green and Sandra Brown, were on the porch of Brown's residence at 165 Homestead Avenue in Hartford. At that time, they saw a young man, later determined to be the victim, walking toward them on Homestead Avenue, holding an ‘ice pop’ in his hand. At the same time, two additional witnesses, Victor Lowe and Fred Faucette, were standing on the sidewalk of Homestead Avenue. They also noticed the victim.

“All four witnesses then observed a red Mitsubishi automobile drive up Homestead Avenue, pass the victim, stop suddenly, back up and halt near him. The [petitioner] then emerged from the driver's side of the car and approached the victim. An argument ensued between the two men. This confrontation continued twenty to forty feet from Lowe and Faucette.

“While the [petitioner] and victim exchanged words, the four witnesses observed, from different vantage points, that the [petitioner] held his right hand behind his back. From where they were located, both Green and Brown observed that the [petitioner]'s hand, which was behind his back, was on the handle of a knife. Upon seeing the knife, Brown commented to Green, ‘He wouldn't dare do that.’

“After further words had been exchanged, the victim agreed to fight the [petitioner]. The victim did not, however, make any physical movement toward the [petitioner]. The [petitioner] then pulled the knife from behind his back and began to make stabbing motions at the victim. One of these stabbing motions cut the victim's ice pop in half as the victim was retreating.

“The victim ran into a nearby yard where he was pursued by the [petitioner]. There, the [petitioner] stabbed the victim in the upper left portion of his chest, causing his death. The [petitioner] then reentered the car and left the scene.” Id., at 120–21, 635 A.2d 762.

After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a–54a (a) and sentenced to fifty years imprisonment. Id., at 119, 635 A.2d 762. In March, 1995, the petitioner, representing himself but with appointed standby counsel, filed a habeas corpus petition alleging, inter alia, that his trial counsel, attorney Kenneth Simon, provided ineffective assistance by failing to present a defense of extreme emotional disturbance.¹ After a habeas trial at which the petitioner and Simon testified, the court denied the petition for habeas corpus and the petitioner's subsequent petition for certification to appeal. See Francis v. Warden, Superior Court, judicial district of Hartford–New Britain at Hartford, Docket No. CV–95–0550706 (February 18, 1998), appeal dismissed, 63 Conn.App. 282, 775 A.2d 1004, cert. denied, 256 Conn. 933, 776 A.2d 1150 (2001).

In his present habeas corpus petition the petitioner alleges, inter alia, that Simon provided ineffective assistance because he (1) failed to investigate and to present a defense of extreme emotional disturbance and failed to request a jury charge on the defense,² and (2) failed to move to disqualify the presiding judge at the petitioner's hearing in probable cause and the criminal trial. The habeas trial was held on October 15, 2009, and March 2, 2010; the court heard expert testimony from an attorney and a psychiatrist regarding the petitioner's claims. Following the trial, the court denied the petitioner's petition and subsequently granted his petition for certification to appeal. This appeal followed. Additional facts and procedural history will be introduced as necessary.

We first set forth the standard of review and legal principles applicable to the petitioner's appeal. “Although a habeas court's findings of fact are reviewed under the clearly erroneous standard of review ... [w]hether the representation a defendant received at trial was constitutionally inadequate is a mixed question of law and fact.... As such, that question requires plenary review by this court unfettered by the clearly erroneous standard.” (Citations omitted; internal quotation marks omitted.) Ham v. Commissioner of Correction, 301 Conn. 697, 706, 23 A.3d 682 (2011).

A claim of ineffective assistance of counsel as enunciated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), “consists of two components: a performance prong and a prejudice prong. To satisfy the performance prong ... the petitioner must demonstrate that his attorney's representation was not reasonably competent or within the range of competence displayed by lawyers with ordinary training and skill in the criminal law.” (Internal quotation marks omitted.) Boyd v. Commissioner of Correction, 130 Conn.App. 291, 294–95, 21 A.3d 969, cert. denied, 302 Conn. 926, 28 A.3d 337 (2011). Our Supreme Court has stated that “the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances,” and that “[j]udicial scrutiny of counsel's performance must be highly deferential.” (Internal quotation marks omitted.) Ham v. Commissioner of Correction, supra, 301 Conn. at 706, 23 A.3d 682. “[T]here is a strong presumption that the trial strategy employed by a criminal defendant's counsel is reasonable and is a result of the exercise of professional judgment....” (Internal quotation marks omitted.) Servello v. Commissioner of Correction, 95 Conn.App. 753, 761, 899 A.2d 636, cert. denied, 280 Conn. 904, 907 A.2d 91(2006).

“To satisfy the prejudice prong, a claimant must demonstrate 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.) Boyd v. Commissioner of Correction, supra, 130 Conn.App. at 295, 21 A.3d 969. A petitioner's claim will “succeed only if both prongs are satisfied.... Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unworkable.” (Citation omitted; internal quotation marks omitted.) Id. “A court can find against a petitioner ... on either the performance prong or the prejudice prong, whichever is easier.” Ham v. Commissioner of Correction, supra, 301 Conn. at 704, 23 A.3d 682.

I

The petitioner first asserts that Simon provided ineffective assistance because he failed to investigate a defense of extreme emotional disturbance and failed to present or to request a jury instruction on this defense during the petitioner's criminal trial. We are not persuaded by either contention.

The following additional facts are relevant to this claim. As our Supreme Court recounted on direct appeal: “The [petitioner] testified on his own behalf [at his criminal trial] ... that, on the date of the homicide, he had been driving a car that his sister had rented. He and two passengers were driving on Homestead Avenue when the rental car was struck by an object. When the [petitioner] got out to inspect the car, he confronted the victim who, he suspected, had thrown the object. Although the [petitioner] did not recognize the victim initially, he soon recalled the jailhouse incident. The two men then began the argument that led to the stabbing. The [petitioner] claimed that he had been ‘nervous and shaken’ during this argument. He also claimed that friends of the victim had approached the two of them. At this point, the [petitioner] reached for a folding knife in his back pocket.

“The [petitioner] also testified that when the victim had swung the hand holding the ice pop, juice from the ice pop had blinded him. The [petitioner] further claimed that, during the struggle that ensued, he had swung his knife only once and had not realized that he had struck anything until he had noticed blood on the knife and had seen the victim fall to the ground.” State v. Francis, supra, 228 Conn. at 121–22, 635 A.2d 762. Our Supreme Court referred to the petitioner's theory of the case as “[resting] on the assertion of an ‘ice pop defense’: blinded by the juice of the victim's ice pop, [the petitioner] ... swung his knife randomly, and did not intend to stab the victim.” Id., at 129, 635 A.2d 762.

At the first habeas trial, Simon testified that the petitioner had given him “different versions of what had happened ... right up until the time that [the petitioner] testified” at his criminal trial, which “handcuffed [Simon's] decision-making process.” ³ Specifically, the petitioner...