Gooden v. Comm'r of Correction., 31306.

• Decision Date: 05 April 2011
• Docket Number: No. 31306.,31306.
• Court: Connecticut Court of Appeals
• Parties: Anthony GOODENv.COMMISSIONER OF CORRECTION.

127 Conn.App. 662

14 A.3d 1066

Anthony GOODEN

v.COMMISSIONER OF CORRECTION.

No. 31306.

Appellate Court of Connecticut.

Argued Jan. 19, 2011.Decided April 5, 2011.

Charles F. Willson, special public defender, for the appellant (petitioner).Laurie N. Feldman, special deputy assistant state's attorney, with whom, on the brief, were Matthew C. Gedansky, state's attorney, and Nicholas Bove, Sr., senior assistant state's attorney, for the appellee (respondent).BISHOP, GRUENDEL and ROBINSON, Js.PER CURIAM.

The petitioner, Anthony Gooden, appeals following the habeas court's denial of his petition for certification to appeal from the judgment denying his amended petition for a writ of habeas corpus. On appeal, he claims that the court abused its discretion in denying his petition for certification to appeal and that the court improperly rejected his claim that his trial counsel had provided ineffective assistance. More specifically, the petitioner claims that trial counsel failed (1) to have a third party present during an interview of a witness who allegedly stated that he would provide exculpatory testimony at the petitioner's criminal trial and (2) to lay a foundation to impeach that witness when his testimony at trial was inconsistent with the prior statement made to counsel during the interview. We dismiss the appeal.

The facts underlying the petitioner's conviction were set out at length in State v. Gooden, 89 Conn.App. 307, 309–310, 873 A.2d 243, cert. denied, 275 Conn. 918, 919, 883 A.2d 1249 (2005). “On September 15, 1999, during an undercover police operation, a confidential informant, Michael Young, arranged to meet the [petitioner] at a Bridgeport restaurant. Young was accompanied by an undercover police officer, James Lofton. Five additional officers were located inside and outside of the restaurant in order to observe the [petitioner's] interactions with Young and Lofton. The [petitioner], wearing a white Tommy Hilfiger jacket, arrived at the restaurant in a gray Ford Taurus and parked alongside Young's vehicle. Young introduced Lofton as a friend, and the [petitioner] asked Lofton how many he wanted. Lofton said that he wanted two and gave the [petitioner] two previously photocopied $20 bills. The [petitioner] gave Young two plastic bags containing cocaine, which Young passed to Lofton. The [petitioner], after exiting his vehicle to use a pay telephone, returned and drove away. A few of the officers followed the [petitioner] to 300 French Street in Bridgeport after witnessing the transaction. The officers determined that the vehicle driven by the [petitioner] was registered at that address in the name of Barbara Manning.

“Two days later, Young and Lofton again arranged to meet the [petitioner], this time in Stratford. The [petitioner] drove up in a white Pontiac Grand Am and asked Young and Lofton how many they wanted. Lofton said he wanted two and handed previously photocopied money to Young, who then handed it to the [petitioner]. The [petitioner] gave Young two plastic bags containing cocaine. Four of the officers who had witnessed the previous Bridgeport sale also witnessed the Stratford incident.

“On September 23, 1999, members of the Stratford and state police simultaneously executed two search warrants, one at 11 Justice Street, the home of Kanzada Bishop, the [petitioner's] girlfriend at the time, and one at Manning's 300 French Street address. Upon executing the Justice Street warrant, the police forced entry into the home and found the [petitioner] in a bedroom. The [petitioner] had $614 in his pocket and the keys to the white Grand Am, which was parked in the driveway. Cocaine was found in the overhead compartment of the automobile. Upon executing the warrant at the French Street location, the officers found a suitcase and a storage bin inside of a closet. A Tommy Hilfiger jacket, which matched the description of the jacket worn by the [petitioner] during the first drug transaction, was found in the storage bin in the closet. In its pocket, the officers found a large amount of cocaine. Cocaine was also found packaged in tinfoil on the bathroom floor.

“One of the keys from the [petitioner's] key ring, which was seized at the Justice Street location, opened the suitcase from the French Street location. The police found jewelry, papers and approximately $9900 inside of the suitcase. The previously photocopied $20 bills were among the cash found in the suitcase.” Id.

The record reveals the following additional undisputed facts and procedural history. In 2002, following his criminal trial, the petitioner was convicted of one count of possession of narcotics in violation of General Statutes § 21a–279 (a), one count of possession of narcotics with intent to sell by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b) and two counts of sale of narcotics by a person who is not drug-dependent in violation of General Statutes § 21a–278 (b). Upon conviction, the trial court sentenced the petitioner to a term of imprisonment of nineteen years. Thereafter, the petitioner filed a direct appeal from the judgment of conviction, and this court reversed the judgment as to the possession charges only. The judgment was affirmed in all other respects. State v. Gooden, supra, 89 Conn.App. at 308–309, 873 A.2d 243.

In his amended habeas petition, filed on September 24, 2008, the petitioner alleged that he received ineffective assistance from his trial counsel, Timothy Aspinwall. On May 21, 2009, the court held a trial on the petition, at which the petitioner and Aspinwall testified. During the trial, Aspinwall testified that, prior to the petitioner's criminal trial, he had conducted an interview of Young. Aspinwall and Young were the only individuals present during the interview. According to Aspinwall, during that interview, Young stated that he would testify that the petitioner was not involved in the drug transactions for which the petitioner was charged. On the basis of Young's statement, and in view of the strength of the state's case against the petitioner, Aspinwall decided to call Young as a witness.¹ When called to the stand, however, Young testified that the petitioner was involved in the drug transactions. Aspinwall, apparently surprised by the testimony, did not confront Young regarding his prior statement exculpating the petitioner. Following the conclusion of the evidence, Aspinwall filed a motion for a mistrial, to withdraw as counsel and to become a witness to...