Jordan v. Commissioner of Correction

• Decision Date: 05 November 2021
• Docket Number: SC 20485
• Citation: 267 A.3d 120,341 Conn. 279
• Parties: Bryan JORDAN v. COMMISSIONER OF CORRECTION
• Court: Connecticut Supreme Court

341 Conn. 279

267 A.3d 120

Bryan JORDAN

v.COMMISSIONER OF CORRECTION

SC 20485

Supreme Court of Connecticut.

Argued May 3, 2021

Officially released November 5, 2021^*

Daniel J. Krisch, assigned counsel, Hartford, for the appellant (petitioner).

James A. Killen, senior assistant state's attorney, with whom, on the brief, were Patrick J. Griffin, state's attorney, and Rebecca A. Barry, supervisory assistant state's attorney, for the appellee (respondent).

Robinson, C. J., and McDonald, D'Auria, Kahn, Ecker and Keller, Js.

McDONALD, J.

This certified appeal requires us to consider how a habeas petitioner may satisfy his burden to establish a claim of ineffective assistance of counsel under Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), when the allegedly ineffective counsel has died prior to the habeas trial. The petitioner, Bryan Jordan, was engaged in an argument with the victim, Curtis Hannons, when an initial gunshot fired from elsewhere prompted the petitioner to pull out his gun and fire it once at the victim's head. The petitioner was convicted of manslaughter in the first degree, in addition to another crime, and sentenced to forty-five years of imprisonment, and he thereafter filed a petition for a writ of habeas corpus on the basis of ineffective assistance of his trial counsel. The habeas court granted the petition for a writ of habeas corpus, reasoning that trial counsel's failure to call six additional eyewitnesses to testify at the underlying criminal trial prejudiced the petitioner's defense. The Appellate Court subsequently reversed the habeas court's judgment on the ground that the petitioner, as a consequence of his trial counsel's death, had not provided sufficient evidence to rebut the strong presumption that his trial counsel had exercised her reasonable professional judgment. Jordan v. Commissioner of Correction , 197 Conn. App. 822, 871–72, 234 A.3d 78 (2020). On appeal to this court, the petitioner claims that the Appellate Court's standard places an insurmountable obstacle in the path of a habeas petitioner whose trial counsel is unavailable to testify. For the following reasons, we clarify the applicable standard and conclude that the petitioner has failed to satisfy the Strickland test with respect to either claim of ineffective assistance of counsel.

The Appellate Court's decision affirming the petitioner's conviction on direct appeal sets forth the facts and procedural history; State v. Jordan , 117 Conn. App. 160, 161–62, 978 A.2d 150, cert. denied, 294 Conn. 904, 982 A.2d 648 (2009) ; which we summarize in relevant part. On the day of the shooting, the petitioner was in an argument with the victim and the victim's brother, Jason Kelly. The argument ended when the petitioner got into his car and drove away. A few minutes later, the petitioner returned, and another heated discussion took place between the petitioner and the victim. Several people congregated around the petitioner and the victim, attempting to calm them down.

The eyewitnesses gave varying accounts of precisely what happened next. All agreed, however, that an initial gunshot was fired by someone other than the petitioner or the victim. Several witnesses then saw the petitioner pull out a gun and fire it once in the direction of the victim's head. The petitioner fled on foot, and the witnesses heard several more gunshots. The victim was transported to a hospital, where he died.

The petitioner was arrested and charged with murder in violation of General Statutes § 53a-54a (a), as well as several lesser included offenses.¹ The petitioner asserted a claim of self-defense. Id., at 170, 978 A.2d 150. The jury ultimately found the petitioner not guilty of murder but guilty of manslaughter in the first degree with a firearm in violation of General Statutes § 53a-55a (a). Id., at 162, 978 A.2d 150. The trial court sentenced the petitioner to the maximum permitted sentence of forty years of imprisonment with respect to this charge. Jordan v. Commissioner of Correction , supra, 197 Conn. App. at 824 n.1, 234 A.3d 78. The Appellate Court affirmed the petitioner's conviction on direct appeal. State v. Jordan , supra, 117 Conn. App. at 172, 978 A.2d 150.

The Appellate Court's decision reversing the habeas court's judgment in the present case sets forth additional facts and procedural history pertaining to the habeas proceeding; Jordan v. Commissioner of Correction , supra, 197 Conn. App. at 824–28, 234 A.3d 78 ; which we summarize in relevant part. The petitioner filed the present amended petition for a writ of habeas corpus against the respondent, the Commissioner of Correction, in 2015. The petition raised, in relevant part, two claims of ineffective assistance of trial counsel in violation of the United States and Connecticut constitutions. Specifically, the petitioner first alleged that his criminal trial counsel, Diane Polan, failed to conduct a proper investigation and failed to present available evidence supporting his self-defense claim. The petitioner also alleged that Polan failed to raise a third-party culpability defense as a result of the same improper investigation and failure to present available evidence.

The habeas court, Kwak , J. , conducted a trial and heard testimony from the petitioner, as well as eight witnesses called on his behalf, including Polan's private investigator, an attorney testifying as an expert on professional standards, and six individuals who witnessed the events surrounding the shooting but were not called by Polan to testify during the criminal trial. The court did not hear testimony from Polan because she had died prior to the habeas trial. The court subsequently granted the petition for a writ of habeas corpus on the basis of both claims of ineffective assistance of counsel. Specifically, the court determined that "the petitioner had met his burden of demonstrating that Polan had rendered constitutionally deficient performance by failing to investigate properly or to present available evidence in support of the petitioner's claim of self-defense and by failing properly to investigate, raise, or present evidence in support of a third-party culpability defense." Id., at 828, 234 A.3d 78. The court further determined that the petitioner had met his burden of demonstrating that Polan's deficient performance "had prejudiced him by unduly diminishing his due process right to establish a defense." Id.

The Appellate Court reversed the judgment of the habeas court with respect to both claims of ineffective assistance of counsel. Id., at 872, 234 A.3d 78. The court emphasized that, because Polan was unavailable to testify at the habeas trial, the petitioner had not met his burden of establishing how her investigative efforts were inadequate. Id., at 848, 234 A.3d 78. Likewise, the court reasoned that the petitioner had not met his burden of disproving the objective reasonableness of any strategic reasons Polan might have had for her decisions regarding the investigation, which witnesses to call, and the potential third-party culpability defense. Id. The court then considered the testimony of the habeas witnesses at length and concluded that the petitioner failed to demonstrate that Polan's performance had been deficient with respect to either claim of constitutionally ineffective assistance. Id., at 860, 871, 234 A.3d 78.

Thereafter, the petitioner filed a petition for certification to appeal, which we granted, limited to the following issue: "Did the Appellate Court properly reverse the habeas court's determination that the performance of the petitioner's criminal trial counsel fell outside the range of competent counsel under Strickland v. Washington , [supra, 466 U.S. 668, 104 S.Ct. 2052 ]?" Jordan v. Commissioner of Correction , 335 Conn. 931, 236 A.3d 218 (2020).

On appeal, the petitioner contends that the Appellate Court applied an incorrect standard to his claims of ineffective assistance of counsel. Specifically, the petitioner contends that the habeas court required him to negate every " ‘plausible’ " reason Polan might have had for her failure to investigate and call six witnesses with respect to his self-defense claim, as well as her failure to raise a third-party culpability defense that would have been supported by those same witnesses. With respect to his first claim of ineffective assistance, the petitioner asserts that Polan's failure to investigate the six witnesses who observed the events surrounding the shooting and to call them to support his self-defense claim constituted objectively unreasonable representation. With respect to his second claim of ineffective assistance, the petitioner asserts that Polan's failure to investigate and to call the same witnesses, as well as her failure to raise a claim of third-party culpability supported by those witnesses, was objectively unreasonable. The respondent disagrees, contending that the Appellate Court properly applied the strong presumption of reasonable competence and concluded that the petitioner had failed to meet his heavy burden of overcoming that presumption with respect to either claim of constitutionally ineffective assistance.

I

We begin with the standard of review and principles of law that govern the petitioner's claims. "The habeas court is afforded broad discretion in making its factual findings, and those findings will not be disturbed unless they are clearly erroneous. ... [In addition], [t]he 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. ... The application of the habeas court's factual findings to the pertinent legal standard, however, presents a mixed question of law and fact, which is subject to plenary review." (Citations omitted; internal quotation marks omitted.) Gaines v. Commissioner of Correction , 306 Conn. 664, 677, 51 A.3d 948 (2012).

The sixth and fourteenth amendments to the United...