Mukhtaar v. Comm'r of Corr.

• Decision Date: 07 July 2015
• Docket Number: No. 34193.,34193.
• Citation: 158 Conn.App. 431,119 A.3d 607
• Court: Connecticut Court of Appeals
• Parties: Abdul MUKHTAAR v. COMMISSIONER OF CORRECTION.

158 Conn.App. 431

119 A.3d 607

Abdul MUKHTAAR

v.COMMISSIONER OF CORRECTION.

No. 34193.

Appellate Court of Connecticut.

Argued Jan. 22, 2015.

Decided July 7, 2015.

Abdul Mukhtaar, self-represented, with whom, on the brief, were Michael D. Day and Robert J. McKay, assigned counsel, for the appellant (petitioner).

Leon F. Dalbec, Jr., senior assistant state's attorney, with whom, on the brief, were John C. Smriga, state's attorney, Robin S. Schwartz, assistant state's attorney, and Gerard P. Eisenman, former senior assistant state's attorney, for the appellee (respondent).

BEACH, SHELDON and DUPONT, Js.

Opinion

DUPONT, J.

In this “habeas on a habeas” case, the petitioner, Abdul Mukhtaar, appeals from the judgment of the habeas court denying his third petition, as amended, for a writ of habeas corpus. This third petition is one in a labyrinth of petitions for a writ of habeas corpus and amended habeas corpus petitions filed by the petitioner. On appeal, the petitioner claims that the habeas court erred when it concluded that his first habeas counsel, Damon A.R. Kirschbaum, did not render ineffective assistance by failing to investigate (1) the state's case and witnesses; (2) a third-party culpability claim; and (3) the petitioner's alibi defense.¹ We disagree with the petitioner and, accordingly, affirm the judgment of the habeas court.

The habeas court set forth the following factual history in its memorandum of decision. “At approximately 4 p.m. on February 14, 1996, Benjamin Sierra, Jr., was driving his parents' car on Fairfield Avenue in Bridgeport. While stopped at a red light at the intersection of Fairfield and Iranistan Avenues, Sierra spotted two young women, Tracey Gabree and Terri Horeglad, with whom he was acquainted, standing at a nearby pay telephone. Sierra waved to Gabree and Horeglad and they approached and entered Sierra's car. Horeglad sat in the front passenger seat and Gabree sat in the back seat. Gabree asked Sierra for a cigarette. Sierra then turned around and gave her a cigarette and a light.... When Sierra turned back toward the front of the car, he observed that his vehicle was blocked by a tan car that was facing the wrong direction on Fairfield Avenue. At that moment, Gabree shouted: ‘Oh shit, Kareem!’² Gabree then fled from Sierra's car. A man, later identified by Sierra and Gabree as the [petitioner], emerged from the tan car and approached the passenger side of Sierra's car, where Horeglad remained seated. Sierra jumped out of his car and asked the [petitioner] what was wrong. The [petitioner], who did not respond, pulled out what appeared to be a .32 or .38 caliber chrome plated revolver and fired four shots at Horeglad, each of which entered the right side of her body. Horeglad died as a result of the gunshot wounds.” (Footnote added.)

The petitioner was charged and, following a jury trial, convicted of murder in violation of General Statutes § 53a–54a. On September 19, 1997, the trial court sentenced the petitioner to fifty years imprisonment. The petitioner appealed from the judgment of conviction directly to our Supreme Court and the conviction was affirmed. State v. Mukhtaar, 253 Conn. 280, 750 A.2d 1059 (2000).

The petitioner filed his first petition for a writ of habeas corpus on January 31, 2001, and subsequently withdrew it on February 28, 2001. He filed his second petition for a writ of habeas corpus on April 2, 2001, and subsequently filed an amended petition on December 21, 2006 (second petition). In count one of the second petition, the petitioner alleged ineffective assistance of his trial counsel, Gerald Bodell. Specifically, he alleged that Bodell rendered deficient performance in (1) advising him not to testify at trial and (2) not seeking additional investigation into the possibility of juror bias. In count two, the petitioner alleged juror bias. At the habeas trial on this second petition, the petitioner was represented by his first habeas counsel, Kirschbaum. Following this first habeas trial, the court denied the second petition, and, thereafter, the petitioner's appeal following that denial was dismissed.

Mukhtaar v. Commissioner of Correction, 113 Conn.App. 114, 964 A.2d 1251, cert. denied, 291 Conn. 913, 969 A.2d 175 (2009).

The petitioner filed his third petition for a writ of habeas corpus on January 14, 2008. This petition was subsequently amended on September 8, 2010, (third petition) and is the subject of this appeal. This third petition alleged, inter alia, that the petitioner's first habeas counsel, Kirschbaum, provided ineffective assistance during the petitioner's first habeas trial. The petitioner alleged that Kirschbaum had failed to adequately (1) prosecute a claim that there had been juror intimidation during the criminal trial; (2) investigate the petitioner's alibi that he was in New York when the crime was committed; (3) present available witnesses and evidence to support the petitioner's contention that trial defense counsel was ineffective; (4) present the issue that the trial judge should have recused himself because he had previously presided over the probable cause hearing; (5) present a claim that the jury was not impartial and that the jury instructions were faulty; (6) investigate and present a claim that trial defense counsel failed to properly investigate and present evidence to impeach a witness' identification of the petitioner; and (7) investigate the factual bases for the petitioner's habeas claims, present evidence in support of third-party culpability, and present available witnesses and establish the petitioner's defense to the criminal charge.

The matter was tried before the habeas court, T. Santos, J., over the course of three days. The habeas court heard testimony from Michael Johnston, William Birch, Bridgeport police Detective Donald A. Jacques, the petitioner, Suzanne Zitser–Curtis,³ and Kirschbaum. On December 5, 2011, the habeas court issued a memorandum of decision denying the third petition, and, on December 22, 2011, granted the petition for certification to appeal. This appeal followed.

On appeal, the petitioner claims that the habeas court erred when it concluded that Kirschbaum did not render ineffective assistance of counsel. Specifically, the petitioner argues that Kirschbaum was ineffective because he failed to investigate the state's case and witnesses, the petitioner's third-party culpability claim, and the petitioner's alibi defense.⁴

We begin by setting forth our well settled standard of review governing ineffective assistance of counsel claims. “In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.” (Internal quotation marks omitted.) McClean v. Commissioner of Correction, 103 Conn.App. 254, 262, 930 A.2d 693 (2007), cert. denied, 285 Conn. 913, 943 A.2d 473 (2008).

“To succeed on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy the two-pronged test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” (Internal quotation marks omitted.) Santaniello v. Commissioner of Correction, 152 Conn.App. 583, 587, 99 A.3d 1195, cert. denied, 314 Conn. 937, 102 A.3d 1115 (2014). “In Strickland ... the United States Supreme Court established that for a petitioner to prevail on a claim of ineffective assistance of counsel, he must show that counsel's assistance was so defective as to require reversal of [the] conviction.... That requires the petitioner to show (1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense.... Unless a [petitioner] makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable.... Because both prongs ... must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong....

“To satisfy the performance prong [of the Strickland test] 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.... [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the [petitioner] must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy....

“With respect to the prejudice component of the Strickland test, the petitioner must demonstrate that counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable.... It is not enough for the [petitioner] to show that the errors had some conceivable effect on the outcome of the proceedings.... Rather, [t]he [petitioner] must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” (Citations omitted; internal quotation marks omitted.) Holloway v. Commissioner of Correction, 145 Conn.App. 353, 364–65, 77 A.3d 777 (2013). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland v. Washington, supra, 466 U.S. at 694, 104 S.Ct. 2052.

“[When] applied to a claim of ineffective assistance of prior habeas counsel, the Strickland standard requires the petitioner to demonstrate that his prior habeas counsel's performance was ineffective and that this ineffectiveness prejudiced the petitioner's prior habeas proceeding.... [T]he petitioner will have to prove that one or both of the prior habeas counsel, in presenting his claims, was ineffective and that effective representation by habeas counsel...