Fullenwiley v. Warden, State Prison, CV154007598

• Decision Date: 13 February 2019
• Docket Number: CV154007598
• Court: Connecticut Superior Court
• Parties: Charles FULLENWILEY v. WARDEN, STATE PRISON

Charles FULLENWILEY v. WARDEN, STATE PRISON

No. CV154007598

Superior Court of Connecticut, Judicial District of Tolland, Rockville, Geographic Area 19

February 13, 2019

UNPUBLISHED OPINION

Hon John M. Newson, Judge

I. Procedural History

The petitioner was the defendant in two separate matters pending in the Judicial District of Waterbury. He was initially arrested on charges of Risk of Injury and Sexual Assault under Docket Number CR06-0355582-T (the "sex assault case"), which is the focus of this action. During the investigation into the sex assault case, child pornography was discovered on the petitioner’s computer, and he was charged under docket number CR07-359677-T (the "child porn case") with a single count of Possession of Child Pornography in the First Degree, in violation of General Statutes § 53a-96d.^[1] Although he had several attorneys represent him during the cases, and represented himself for a period of time, he was represented by Attorney Michael Moscowitz, assigned counsel, at most times relevant to the allegations in this petition. The petitioner entered a guilty plea in the child porn case on June 3, 2008, as the jury was being selected for trial, and received a sentence of twenty years on September 19, 2008.^[2] The sexual assault case was continued, and the petitioner ultimately elected to be tried by a jury. On July 22, 2009, the jury returned verdicts of guilty on six counts of Risk of Injury to a Minor, in violation of General Statutes § 53a-21(a)(1), and one count under § 53a-21(a)(2), ^[3] two counts of Assault Third Degree, in violation of General Statutes § 53a-61(a)(1), ^[4] and one count of Sexual Assault First Degree in violation of General Statutes § 53a-70(a)(1).^[5] On October 16, 2009, the petitioner was sentenced to a total effective term of 55 years suspended after the service of 40 years, with 15 years of probation, to run consecutively to the sentence he was serving in the child porn case. The petitioner, represented by Attorney Carlos Candal, appealed the convictions in the sexual assault case, which were affirmed. State v Charles F., 131 Conn.App. 798, 28 A.3d 1023, cert. denied, 303 Conn. 911, 32 A.3d 964 (2011).

The petitioner commenced the present action on October 26, 2015. The amended petition alleges ineffective assistance against trial counsel Moscowitz in count one, denial of constitutional right to speedy trial in count two, ineffective assistance against appellate counsel Candal in count three, and actual innocence in count four. The respondent filed a return generally denying all claims. The matter was tried on September 18 and 21, 2018, and the parties were granted the opportunity to file post-trial memoranda. Further facts and procedural history will be provided as necessary throughout the body of this decision.

II. Law and Discussion

"The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id., 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial 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." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id., 690.

Under the second prong of the test, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id., 691. "[A]ctual ineffectiveness claims alleging deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id., 693. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. "The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., 694. "An assessment of the likelihood of a result more favorable to the defendant must exclude the possibility of arbitrariness, whimsy, caprice, ‘nullification, ’ and the like." Id., 695. The court "must consider the totality of the evidence before the judge or jury." Id. "In its analysis, a reviewing court may look to the performance [1st] prong or to the prejudice [2nd] prong, and the petitioner’s failure to prove either is fatal to a habeas petition." (Internal quotation marks omitted.) Hall v. Commissioner of Correction, 124 Conn.App. 778, 783, 6 A.3d 827 (2010), cert. denied, 299 Conn. 928, 12 A.3d 571 (2011).

COUNT ONE— Ineffective Assistance of Trial Counsel— Michael Moscowitz

The petitioner’s first claim is that Attorney Moscowitz was ineffective for failing to pursue his speedy trial rights despite the fact that the petitioner insisted that he do so. Some additional background is necessary to understand the history of this claim. The petitioner was originally arrested on these charges on about October 26, 2008, and appears to have been held on bond throughout the case. The court record appears to indicate that the petitioner, then represented by an Attorney Harrington, filed a document that purported to be a "pro se motion for speedy trial," which was received by the court on February 19, 2008.^[6] According to those same court records, however, Attorney Moscowitz did not first appear on behalf of the petitioner until March 3, 2008. On discussing this document with the parties on March 13, 2008, however, the court concluded that it was actually a letter directed to one of the judges where the petitioner simply mentions a desire for a speedy trial, as opposed to a formal speedy trial motion. More importantly, the court addressed both Attorney Moscowitz and the petitioner directly on the issue, and the petitioner, along with Attorney Moscowitz, agreed that no speedy trial request was being pursued at that time.^[7] Notwithstanding that he had just come into the case, and that he had tried to explain to the petitioner that he was waiting on authorization to incur expenses for an investigator, Attorney Moscowitz agreed to have the case marked over to begin jury selection on May 12, 2008. On April 18, however, the petitioner filed another self-represented motion for speedy trial with the court.^[8] At the time the motion was filed, both of the petitioner’s cases were still scheduled to begin jury selection on May 12, 2008, ^[9] which is less than the thirty days required by General Statutes § 54-82m(2).^[10] Notwithstanding, the motions were addressed at a hearing on April 30, 2008. During that hearing, Attorney Moscowitz stated unequivocally that he was not adopting the petitioner’s motion.^{[11] , [12]} Both cases were then continued to the already scheduled date of May 12, 2008, for jury selection.^[13] For reasons not made clear by any of the evidence presented before this Court, however, both cases were back on the docket on May 9, 2008, then continued on the "firm jury" docket for May 15th, and eventually over to May 19th.^[14] The clerk’s notations for May 19th under the child porn case indicate "scheduling conference held ... continue to 5-28-08 for jury selection."^[15] The docket sheet for this file simply indicates "too firm jury" without any date.^[16] Jury selection on the child porn case went May 28 through June 2, 2008, and the petitioner entered his guilty plea on June 3, 2008. Both cases eventually went to September 19, 2008, when the petitioner was sentenced on the child porn case.

In the present case, the petitioner has simply offered the bald claim that trial counsel failed to pursue his speedy trial rights, which lacks credibility in its own right given the trial record, but has failed to offer any actual evidence to show how he was prejudiced or that counsel’s decisions were unreasonable. While the constitutional right to a "speedy trial" is beyond citation, the decision of when, or whether, to...