Turner v. Dzurenda

• Decision Date: 30 January 2009
• Docket Number: No. 3:06-CV-06 (RNC).,3:06-CV-06 (RNC).
• Citation: 596 F.Supp.2d 525
• Court: U.S. District Court — District of Connecticut
• Parties: Corey TURNER, Petitioner, v. James DZURENDA, Respondent.

596 F.Supp.2d 525

Corey TURNER, Petitioner, v. James DZURENDA, Respondent.

Case No. 3:06-CV-06 (RNC).

United States District Court, D. Connecticut.

January 30, 2009.

Corey Turner, Newtown, CT, pro se.

Courtney Gates-Graceson, Michael E. O'Hare, Office of the Chief State's Attorney, Rocky Hill, CT, for Respondent.

RULING AND ORDER

ROBERT N. CHATIGNY, District Judge.

Petitioner, a Connecticut inmate serving a sixty year sentence for murder, moves pro se for a writ of habeas corpus vacating his conviction on the ground that he was denied his Sixth Amendment right to effective assistance of counsel. In a prior state habeas proceeding, petitioner's claims were rejected on the merits under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). (See Transcript of Record, Turner v. Warden State Prison, No. CV98-0332808 (Conn.Super.Ct. Jan. 4, 2002)(hereinafter "Jan. 4 Habeas Trial Tr.")). Petitioner's primary claim is that his trial counsel was ineffective in failing to attempt to impeach the State's main witness with a sworn statement he gave to a detective three days after the murder. Petitioner also alleges that his appellate counsel was ineffective in failing to claim that the trial court erred in overruling an objection to part of the prosecutor's closing argument. To obtain federal habeas relief, petitioner must show that the state court applied Strickland in an objectively unreasonable manner. See Bell v. Cone, 535 U.S. 685, 699, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). Respondent argues that petitioner has not met this standard. After careful consideration, I agree and therefore dismiss the petition.

I. Background

In 1997, following a joint jury trial in Connecticut Superior Court, petitioner, Corey Turner, was convicted of murder and assault in the first degree, and his brother, Charles Turner, was convicted of being an accessory to these crimes. The victim, Richard Woods, was shot in the front yard of a residence at 145 Homestead Avenue in Hartford at about 11:30 p.m. on August 11, 1995. A number of people were in the immediate vicinity at the time of the shooting, including Kendrick Hampton, Darius Powell, and Betty Lewis, all of whom testified for the State at the trial.

Hampton is the witness whose testimony is at issue here. Three days after the shooting, he went to the police station and provided a signed, sworn statement to Detective Keith Knight. (See Petr.'s Mem. Of Law Ex. A.)¹ Hampton's statement recounted the following. On the night of the murder, he was standing in the front yard of 141 Homestead. Woods and Darius Powell were standing nearby in the front yard of 145 Homestead. The Turner brothers drove by in a tan Oldsmobile. Petitioner was known by his street name "Boku"; petitioner's brother was known by his street name "Homicide." Not long after the Turners drove by together, petitioner's brother returned in the car alone, parked across the street from where Hampton, Woods, and Powell were standing, got out of the car, and looked in their direction while "bobbing back and forth." At this time, a black male suddenly emerged from behind the residence at 145 Homestead and ran up to Woods and Powell armed with a gun, causing Betty Lewis, who was sitting on the front steps of the residence, to scream. The black male began to shoot directly at Woods striking him in the leg. The black male was about "6'0" tall," had a "thin build," and was "wearing a camouflage shirt over his eyes." Woods yelled to Hampton, "Ken, he shot me in the leg." The black male shot Woods five more times then ran through a gate leading to the back yard of 145 Homestead. Petitioner's brother jumped into the Oldsmobile, drove off, and stopped approximately 3 or 4 houses away. The black male who shot Woods got into the car with petitioner's brother and the two left the area. Hampton ran to Woods who was on the ground having been shot multiple times. Woods grabbed Hampton's leg and said "Boku" and "Homicide" shot me. The black male Hampton saw shoot Woods "fit[] the physical description of `Boku,'" whom Hampton had known for fifteen years.

At the trial, Hampton gave a somewhat more positive identification of the petitioner as the shooter. He testified that when the initial shots were fired, he and Woods were looking at petitioner's brother "dancing around" in the street. In response to the gunfire, he and Woods turned and saw the shooter. The shooter matched the petitioner's height, weight, and build and, although he had a camouflage shirt around his head, his eyes and nose were visible. (Trial Tr. 230-31.) After the shooting, according to Hampton's testimony, he saw the shooter run behind the house at 145 Homestead, then emerge from behind a house approximately four houses away, where the tan Oldsmobile was now parked with petitioner's brother at the wheel. At this time, Hampton testified, the shooter no longer had the camouflage shirt around his head. (Trial Tr. 236.) Hampton testified that he watched the shooter get in the passenger's side of the waiting car, which then left the area. Hampton ultimately testified on re-direct that he was "sure" the petitioner and his brother were the perpetrators. His identification of the petitioner was based on the shooter's height, weight, and build, the shooter's eyes and nose, and his opportunity to observe the shooter with no head covering.

Hampton was cross-examined extensively, first by counsel for petitioner's brother, then by petitioner's counsel. In the course of the cross-examination, Hampton made inconsistent statements concerning the time and sequence of key events, and ultimately acknowledged that he had great difficulty remembering things.² He was asked about the statement he gave to Detective Knight and some parts of the statement were admitted into evidence as inconsistent with his trial testimony. But neither defense counsel questioned Hampton about the discrepancies between his identification testimony and prior sworn statement concerning his degree of certainty that the petitioner was the shooter, his ability to see the shooter's eyes and nose, and his opportunity to observe the shooter with no head covering.

Darius Powell testified that he saw the petitioner confront Woods on Homestead Avenue during the afternoon on the day Woods was shot and heard him tell Woods, "I don't give a fuck about you." He also heard petitioner tell Woods, "I'm going to get mine." (Trial Tr. 516-18.) After the argument, Powell testified, the petitioner left in his tan Oldsmobile. (Trial Tr. 584-86.) That night, Powell was standing next to Woods in the front yard of the residence at 145 Homestead when the shooting occurred. Just before the first shots, he saw petitioner's brother standing across the street "sort of" looking in their direction. He sensed someone was approaching from behind, turned to see who was there, and saw a man with a gun "creeping up" on them. The gun was a black 9-millimeter pistol similar to one Powell had seen in the possession of petitioner's brother a week before. The man was slim and about six feet tall, like the petitioner, and wore black boots similar to ones the petitioner wore. (Trial Tr. 536-37.) He was wearing a camouflage shirt over his face but his eyes were visible and Powell saw part of the shooter's face. (Trial Tr. 523, 525.) Powell testified that he looked into the shooter's eyes and realized he had seen them "lots of times." (Trial Tr. 526.) The shooter fired the gun at Woods and Woods turned to see who was shooting him. To avoid being hit, Powell jumped over a nearby fence and took cover until the shooting stopped. He then went back to assist Woods. Powell testified that he saw Woods holding Hampton's leg asking for help.

The State presented the testimony of several other witnesses. Betty Lewis testified that the man who shot Woods was wearing a dark-colored ski mask covering his face but she could see his eyes, nose, and mouth. (Trial Tr. 127, 171-72.) Lillian Williams testified that the shooter's build matched that of the petitioner. (Trial Tr. 711-12.) Jesse Keith testified that after the shooting he went to Woods's side and heard Woods say, "Boku shot me, man." (Trial Tr. 605.)

After the State rested its direct case, the trial court excused the jury and asked defense counsel if they intended to present an alibi defense. They said they had no plans to do so. The court then advised petitioner and his brother that they had a right to testify. The next day, petitioner's counsel informed the prosecutor that he would like to call an alibi witness, Fonda Williams, with whom the petitioner has a child. The prosecutor asked the court to preclude Williams from testifying on the ground that the petitioner had failed to provide notice of his alibi, notwithstanding the State's request that he do so, which the State had submitted a year earlier. Petitioner's counsel argued that there was good cause for the late disclosure because petitioner did not tell him about this alibi witness until after the State rested. Petitioner told the court that he did not disclose his alibi witness earlier because he did not decide to testify until after the court advised him of his right to do so. The court ended up ruling that Williams would be allowed to testify but only after the State had an adequate opportunity to prepare to cross-examine her.

The petitioner then took the stand. He testified that the day before the murder, he was released from jail in New York City and returned to Connecticut. The next day, he had his car towed to a garage to be repaired. After the car was towed, he went to Homestead Avenue to see Woods. Petitioner testified that he and Woods were "like brothers" and their families were friendly with each other. According to petitioner's testimony, Woods gave him a ride to the garage to pick up the car and lent him money to help pay for the repairs. Petitioner testified that he then drove to his brother's house. At...