The
petitioner was the defendant in the criminal matter State
v. Carmi Kellman, CR94-0391538, in the New Haven
Judicial District. At all relevant times, the petitioner was
represented by attorney Richard Silverstein. The petitioner
was charged with murder in violation of Connecticut General
Statutes § 53a-54a; carrying a pistol without a permit
in violation of Connecticut General Statutes § 29-35;
stalking in the first degree in violation of Connecticut
General Statutes § 53a-181c(a)(2); and criminal
violation of a protective order in violation of Connecticut
General Statutes § 53a-110b(a).
After
jury trial, the petitioner was acquitted of the stalking
charge and convicted on all other counts. On March 21, 1997
the trial court, Licari, J., sentenced the petitioner to
sixty years to serve on the murder charge, one year
concurrent on the firearm-related charge (an unclassified
five-year felony) and one year concurrent on the protective
order violation (at the time a class A misdemeanor). The
petitioner received a total effective sentence of sixty years
to serve.
The
petitioner's convictions were affirmed on appeal.
State v. Kellman, 56 Conn.App. 279, 742 A.2d 423
cert. denied, 252 Conn. 939, 747 A.2d 4 (2000). In affirming
the trial judgment, the reviewing court made the following
findings relevant to the resolution of the instant matter:
"
The jury reasonably could have found the following facts. The
defendant and the victim, Carmen Smith, began a two-year
romantic relationship sometime in 1992, which was marked by
repeated domestic incidents, breakups and reconciliations.
Numerous complaints were lodged with the police by the victim
about the defendant. In July 1993, after an arrest based on
such a complaint, the defendant was ordered by the victim to
move out of her residence. The defendant returned during a
brief reconciliation, but was dispossessed permanently by the
victim later that year.
"
As the defendant continued to pursue the relationship, his
behavior became more hostile, and the domestic incidents
increased in severity. In February 1994, the defendant was
arrested outside the victim's residence after being
pursued by the police. He had in his possession the
victim's house keys. Thereafter, the victim obtained a
protective order from the Superior Court, prohibiting the
defendant from entering her home and from restraining
harassing or contacting her. The defendant, however
continued to harass the victim on many occasions. Later that
month, he forced his way into her house and, in the presence
of a witness, struck the victim and took her house keys. The
defendant absconded before the arrival of the police
following a 911 emergency call. A warrant for his arrest was
prepared. Two days later, the defendant was arrested while
calling the victim by telephone; he had her house keys in his
pocket and her pocketbook was hanging from his neck. Around
that time, the defendant purchased, on the street, a .22
caliber pistol with five live rounds and displayed it to the
victim. On Saturday, March 12, 1994, the victim and her
sister went shopping, had dinner and went to a club for the
evening. At approximately 2 a.m. on March 13, they returned
to the victim's house, where the defendant was waiting in
the driveway. He had his revolver in his pocket and, as he
approached the two women, the victim cried out, " No
Carmi, no, " and " No, don't do it." The
defendant pulled out the gun and chased the victim down a
walkway alongside the building. The defendant overtook the
victim, who was screaming with fright, and exclaimed, "
I got you now, bitch." He then fired all five bullets
into the victim, causing her death. The shooting occurred at
close range, probably two and one-half feet from the victim.
"
The following day, the defendant admitted to a friend that he
had been involved in the shooting that led to the
victim's death. After his arrest, he claimed that the
shooting was an unintended mistake. At trial, the defendant
claimed that he was suffering from extreme emotional
disturbance and that he was intoxicated when he shot the
victim." State v. Kellman, supra, 56 Conn.App.
280-82. Regarding the petitioner's trial defenses of
intoxication and extreme emotional disturbance, the Appellate
Court found the following:
"
The defendant claims first that the trial court improperly
instructed the jury on intoxication, thereby invalidating the
instruction on extreme emotional disturbance. The defendant
seeks review of this unpreserved claim by invoking the
guidelines of State v. Golding, 213 Conn. 233, 567
A.2d 823 (1989), and plain error review. Practice Book §
60-5.
"
The defendant testified that on the day of the murder, he had
consumed two forty ounce bottles of beer, smoked some
marijuana and later had a number of cocktails. The state and
the defense submitted identical written requests to charge on
intoxication. The court instructed as follows: "
Intoxication is not a defense to or an excuse for the
commission of a crime. It is only relevant to negate the
specific intent which is an element of that particular crime.
If you find that the defendant was intoxicated at the time of
a crime, you may take this fact into consideration in
determining whether he was in such a state of intoxication as
to be incapable of forming the required specific intent,
which is a necessary element for the commission of that
particular crime. If you believe that the defendant, although
intoxicated, was still capable of possessing this specific
criminal intent, then his responsibility as to that
particular crime is the same as if he were not intoxicated .
. . Any degree of intoxication, not merely total
intoxication, may be considered in determining whether the
defendant possessed the requisite specific intent. Whether or
not the defendant was so intoxicated that he could not and
did not form the required intent is a question of fact for
you to determine. This instruction does not apply to the
defense of extreme emotional disturbance." The defendant
did not object or take exception to the instruction.
"
In explaining the affirmative defense of extreme emotional
disturbance, the court instructed the jury in pertinent part
as follows: " Extreme emotional disturbance is the
emotional state of an individual who was exposed to extremely
unusual and overwhelming stress, and has such an extreme
emotional reaction to it as a result of which there is a loss
of self-control and reason is overborne by intense feelings
such as passion, anger, distress, grief, excessive agitation
or other similar emotions . . . It is your responsibility as
the triers of fact to decide to what extent, if any, the
defendant's emotions governed his conduct at the time he
intentionally caused the death of [the victim] if you reach
that conclusion. In reaching that decision, you may consider
all the feelings which you find, in fact, influence the
defendant's conduct, for example, passion, anger,
distress, grief, resentment, fright, hatred, excessive
agitation or other similar emotions."
"
The court's instruction on intoxication constitutes a
legally and logically correct statement of the law. The
distinct instruction as to the affirmative defense of extreme
emotional disturbance did not, nor was it required to,
specifically reference intoxication. It did properly
reference and allow the jury to consider " all the
feelings which . . . influence the defendant's conduct,
for example, passion, anger, distress, grief, resentment,
fright, hatred, excessive agitation or other similar
emotions.
"
Our review of the jury instruction as a whole leads us to
conclude that there is no reasonable possibility that it
misled the jury; the instructions given on intoxication were
substantially as requested, and the instruction overall was
sufficient to guide the jury to a correct verdict."
State v. Kellman, supra, 56 Conn.App. 282-85. The
petitioner filed a prior petition for a writ of habeas corpus
assigned docket number CV11-4004108. That petition was
withdrawn prior to trial without a hearing on the merits. On
May 15, 2013, the petitioner initiated the instant matter
with the filing of his pro se petition. In his amended
petition dated June 18, 2015, the petitioner asserts that his
underlying counsel was constitutionally deficient in the
following broad and alternative ways:
A. Regarding the Pretrial Offer from the Prosecuting
Authority
1. Trial counsel failed to inform the petitioner of the
prosecuting authority's pretrial offer; or
2. Trial counsel failed to meaningfully and adequately advise
the petitioner with respect to the offer; or
3. Trial counsel rejected the offer without the authorization
of the petitioner; or
4. Assuming trial counsel did relay the offer to the
petitioner, he advised him to reject the offer and proceed to
trial.
B.
Regarding the Petitioner's Right to Sentence
Review
1. Trial counsel failed to inform the petitioner of his right
to seek sentence review;
2. Trial counsel failed to take steps to preserve the
petitioner's right to seek sentence review;
3. The
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