Ruiz v. Warden, CV–10–4003608 S.
| Decision Date | 04 September 2013 |
| Docket Number | No. CV–10–4003608 S.,CV–10–4003608 S. |
| Citation | 113 A.3d 497 |
| Court | Connecticut Superior Court |
| Parties | Jesus RUIZ v. WARDEN. |
Damon A.R. Kirschbaum, for the petitioner.
David Clifton, assistant attorney general, for the respondent.
The petitioner, Jesus Ruiz, seeks habeas corpus relief from his imprisonment following his convictions, after a jury trial, for two counts of sexual assault in the first degree; sexual assault in the fourth degree; and risk of injury to a child. He received a total effective sentence of seventeen years incarceration, execution suspended after the service of twelve
years, and ten years of probation. The petitioner's convictions were affirmed on direct appeal. State v. Ruiz, 124 Conn.App. 118, 3 A.3d 1021, cert. denied, 299 Conn. 908, 10 A.3d 525 (2010). The petitioner avers in the first count of his amended petition that his criminal defense counsel, Attorneys John Ivers and Robert Casale, provided ineffective assistance, and in the second count that his appellate counsel, Attorney Carlos Candal, was also ineffective. The respondent, the Commissioner of Correction, has denied these allegations and asserts as special defenses deliberate bypass, procedural default, and res judicata.
Our Supreme Court has adopted the two-pronged Strickland test for evaluating ineffective assistance claims. Johnson v. Commissioner of Correction, 218 Conn. 403, 425, 589 A.2d 1214 (1991) ; Ostolaza v. Warden, 26 Conn.App. 758, 761, 603 A.2d 768, cert. denied, 222 Conn. 906, 608 A.2d 692 (1992). The Strickland criteria requires that the petitioner demonstrate, by a preponderance of the evidence, both that his attorney's performance was substandard and that the outcome of the proceedings would have been different. Ostolaza v. Warden, supra, at 761, 603 A.2d 768.
As to the performance prong of Strickland , the petitioner must establish that trial counsel's representation fell below an objective standard of reasonableness. Johnson v. Commissioner of Correction, supra, 218 Conn. at 425, 589 A.2d 1214.
This standard of reasonableness is measured by prevailing, professional norms. Id. The habeas court must make every effort to eliminate the distorting effects of hindsight and to reconstruct the circumstances surrounding counsel's conduct from that attorney's perspective at the time of the representation. Id.
If it is easier to dispose of a claim of ineffective assistance on the ground of insufficient proof of prejudice, the habeas court may address that issue directly
without reaching the question of counsel's competence. Pelletier v. Warden, 32 Conn.App. 38, 46, 627 A.2d 1363, cert. denied, 227 Conn. 920, 632 A.2d 694 (1993). In order to satisfy the prejudice prong of the Strickland test, the petitioner must prove, by a preponderance of the evidence, that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Levine v. Manson, 195 Conn. 636, 640, 490 A.2d 82 (1985). Reasonable probability means a probability sufficient to undermine confidence in the verdict. DaEira v. Commissioner of Correction, 107 Conn.App. 539, 542–43, 946 A.2d 249 (2008), cert. denied, 289 Conn. 911, 957 A.2d 877 (2008). That is, the petitioner must show that there is a reasonable probability that he remains burdened by an unreliable determination of guilt. Id., at 542, 946 A.2d 249.
The petitioner specifically alleges that Attorney Ivers and Attorney Casale ineffectively assisted him by failing to secure the minor victim's1 school, medical, and Department of Children and Families records; that they failed to cross-examine a witness at a Jarzbek hearing adequately; that they failed to present the testimony of a mental health expert at that hearing; that they failed to cross-examine the victim and constancy of accusation witnesses properly; and that they failed to proffer the testimony of a mental health expert at the criminal trial.
There is a preliminary issue that the court must address regarding the specification of deficient representation surrounding the Jarzbek hearing. The prosecutor filed a motion pursuant to General Statutes § 54–86g, as circumscribed by
State v. Jarzbek, 204 Conn. 683, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061, 108 S.Ct. 1017, 98 L.Ed.2d 982 (1988), asking the trial court for permission to videotape the testimony of the victim outside the physical presence of the petitioner. In response, Attorney Ivers requested, pursuant to the holding of State v. Marquis, 241 Conn. 823, 699 A.2d 893 (1997), that the trial court order that a defense mental health expert examine the victim before ruling on the Jarzbek issue. The trial court denied the Marquis examination and granted the Jarzbek motion. Consequently, the victim's testimony was presented to the jury by video recording, in lieu of her live testimony, with the petitioner present in the courtroom.
Evaluating these allegations of defective representation concerning the Jarzbek motion and hearing under the Strickland standard as described above, the petitioner bears the burden of proving that, but for his former lawyers' inadequacies, there exists a reasonable probability that the outcome of his criminal trial would have been different. A threshold question arises as to what constitutes a different outcome in the context of claims pertaining to the Jarzbek/Marquis procedure.
Is it sufficient to demonstrate a reasonable probability that the result of these motions and hearings would have been more to the petitioner's liking, or does the petitioner need to establish a reasonable probability of acquittal, i.e., is he burdened by an unreliable finding of guilt? The court holds that it is the outcome of the criminal trial, rather than that of the preliminary hearings, which is the focus of the prejudice prong of Strickland . Of course, a different result for these pretrial motions may be highly determinative of the ultimate outcome, depending on the nature of the subsidiary rulings and other evidence adduced at the criminal trial.
The court's research discloses no Connecticut case, United States Supreme Court case, or Second Circuit Court of Appeals case precisely on point. However, there are several cases involving analogous circumstances which lead the court to conclude that the material issue for Strickland prejudice analysis is the ultimate finding of guilt.
First, a determination of whether habeas relief ought to be afforded for negligent failures by counsel to protect the constitutional rights of an accused are not coincidental with the adjudication of these constitutional rights on direct appeal. As elaborated above, ineffective assistance claims are usually assessed using the two-pronged test of Strickland , namely, deficient performance which prejudices outcome. The United States Supreme Court has characterized the requisite impact needed to satisfy the prejudice component of the Strickland standard as “ ‘outcome determinative’ ....” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). The Strickland test “by [its] nature require [s] a showing of prejudice with respect to the trial as a whole ....” (Citation omitted; emphasis added.) Id., at 680, 106 S.Ct. 1431.
The Van Arsdall case was a direct appeal based on a denial of the right to confront witnesses, and the United States Supreme Court distinguished the appropriate prejudice standard, viz., harmless error, from the Strickland prejudice component. Id. Under harmless error analysis, the state must affirmatively demonstrate a lack of prejudice, whereas, under the Strickland analysis, the inmate bears the affirmative burden to prove that the deficient acts of counsel affected the final result of the trial. United States v. Cruz, 785 F.2d 399, 405 (2d Cir.1986).
A survey of Connecticut appellate decisions supports the conclusion that it is the legitimacy of the conviction
which must be undermined by counsel's poor representation rather than the loss of a preliminary motion or objection standing alone which suffices to afford habeas relief for ineffective assistance. For instance, with respect to ineffective assistance in the failure to exclude an identification, the Appellate Court stated, “[W]e cannot conclude that there is a reasonable probability that, but for the alleged unprofessional errors of counsel, the trial court would have ruled differently on the suppression of the hospital identification such that the outcome of the trial would have been different.” (Emphasis added.) Davis v. Commissioner of Correction, 125 Conn.App. 449, 464, 7 A.3d 941 (2010), cert. denied, 300 Conn. 915, 13 A.3d 1104 (2011).
Similarly, in Necaise v. Commissioner of Correction, 112 Conn.App. 817, 964 A.2d 562, cert. denied, 292 Conn. 911, 973 A.2d 660 (2009), that court remarked, (Emphasis added.) Id., at 824, 964 A.2d 562.
The same analyses have been applied to ineffective assistance claims of failing to file or pursue adequate motions to exclude admissions and confessions. Cabral v. Commissioner of Correction, 108 Conn.App. 1, 13–14, 946 A.2d 1278, cert. denied, 288 Conn. 915, 954 A.2d 183 (2008) ; see also Thergood v. Commissioner of Correction, 109 Conn.App. 710, 952 A.2d 854, cert. denied, 289 Conn. 953, 961 A.2d 422 (2008). “When [a petitioner]
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Ruiz v. Comm'r of Corr.
...of decision as the proper statement of the relevant facts, issues and applicable law as to this issue. Ruiz v. Warden, 53 Conn.Supp. 347, 113 A.3d 497 (2013). No useful113 A.3d 497purpose would be served by repeating that discussion here. See Pellecchia v. Killingly, 147 Conn.App. 299, 302,......
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