Collins v. Warden

Rogeau COLLINS (Inmate #327526) v. WARDEN

No. CV154007111S

Superior Court of Connecticut, Judicial District of Tolland, Somers, Geographic Area 19

December 28, 2018

UNPUBLISHED OPINION

OPINION

Kwak J.

The petitioner filed a pro se petition for a writ of habeas corpus on March 23, 2015. The pro se petition was amended twice by assigned counsel, with the second amended petition asserting claims in four counts: first, that trial counsel Attorney Aaron Romano, operated under a conflict of interest second, the petitioner received ineffective assistance of trial counsel; third, the petitioner’s right to due process was violated because he was deprived of a fair trial; and fourth, the petitioner is actually innocent. The respondent’s amended return denies the petitioner’s claims and raises procedural default as an affirmative defense to the first and third counts. The petitioner filed a reply to the return that denies he has procedurally defaulted.

The parties appeared before the court on June 8 and 12, 2018, for a trial on the merits. Both parties entered numerous documents, which predominantly consist of transcripts of the criminal proceedings, into evidence. Additionally, the court received testimony from the petitioner, his former trial counsel, Attorney Romano, expert witness Dr. Andrew Meisler and Teara Rosario. The respondent also called Attorney Romano as a rebuttal witness. The parties filed post-trial briefs.

Based on its review of the documentary evidence and testimony presented, and for the reasons articulated more fully below, the petition for a writ of habeas corpus is denied.

UNDERLYING FACTS/PROCEDURAL HISTORY

The petitioner was the defendant in a criminal case, docket number CR09-0630168-T, in the judicial district of Hartford. "The jury reasonably could have found the following facts. In March 2009, Robert Dixon, the victim, resided in Hartford with his girlfriend. Dixon always carried two cell phones. He used one cell phone to sell drugs and the other for personal matters. In addition, he always wore an expensive pair of Cartier glasses. He did not store the drugs he sold at his home, but kept them at a remote location secured in a safe. The key to the safe was on the same key ring as Dixon’s car keys.

"On March 9, 2009, Dixon exchanged several phone calls with an individual named Adrian Dean, a friend of the [petitioner]. At approximately 9:25 p.m. that night, Dixon left his residence in his vehicle carrying both of his cell phones and wearing his Cartier glasses. Sometime thereafter, Dean joined Dixon in the vehicle. Dean then contacted the petitioner, who was driving around the Hartford area in his girlfriend’s vehicle. Dean arranged to meet the [petitioner] at a location in Bloomfield and gave the [petitioner] directions to that location. The [petitioner] followed Dean’s directions and arrived at the location at approximately the same time as Dean and Dixon. Dixon and the [petitioner] then drove their vehicles toward a cul-de-sac at the end of the road. Dixon turned his vehicle in the cul-de-sac and came to a stop. The [petitioner] pulled up and stopped his vehicle to the left of Dixon’s vehicle. The [petitioner] then exited his vehicle. Both the [petitioner] and Dean, who had exited Dixon’s vehicle, approached the driver’s side door of Dixon’s vehicle. Dixon was still sitting in the driver’s seat of his vehicle. Dean, with a firearm in one of his hands, opened the driver’s side door of Dixon’s vehicle and shot Dixon in the head. Dean then asked the [petitioner] to search Dixon’s pockets. The [petitioner] began patting Dixon’s pockets when Dixon flinched and attempted to escape the vehicle through the passenger side door. Dixon was shot seven times as he attempted to escape and died as a result of the multiple gunshot wounds. The [petitioner] and Dean then left the scene in the defendant’s vehicle. The following morning, on March 10, 2009, Dixon was found dead by two fishermen. Dixon’s two cell phones, Cartier glasses, and keys were not found at the scene. The [petitioner] was arrested on March 24, 2009.

"The state, in a long-form information filed on January 11, 2011, charged the [petitioner] with murder in violation of General Statutes § 53a-54a(a), felony murder in violation of § 53a-54c, conspiracy to commit murder in violation of General Statutes §§ 53a-48(a) and 53a-54a(a), robbery in the first degree in violation of § 53a-134(a)(2), and conspiracy to commit robbery in the first degree in violation of §§ 53a-48(a) and 53a-134(a)(2). The jury found the [petitioner] guilty of felony murder and robbery in the first degree, but not guilty on each of the remaining charges. The court sentenced the [petitioner] to a total effective term of forty-five years of imprisonment." State v. Collins, 147 Conn.App. 584, 586-88, 82 A.3d 1208, cert. denied, 311 Conn. 929, 86 A.3d 1057 (2014).

"On appeal, the [petitioner] claim[ed] that the trial court improperly: (1) excluded a statement made by another suspect in the crimes of which the [petitioner] was convicted, (2) excluded testimony regarding the [petitioner’s] statements to police, and (3) excluded evidence of items seized from the residence of another suspect. [The Appellate Court] affirm[ed] the judgment of conviction." Id., 586.

Additional facts will be discussed below as necessary to address the petitioner’s claims.

DISCUSSION

I. Count One-Conflict of Interest

The petitioner alleges that Attorney Romano operated under a conflict of interest. More specifically, the petitioner asserts that counsel’s duty of loyalty to the petitioner was impaired when counsel’s financial interest in the retainer precluded him from obtaining experts. The petitioner further avers that in his motions for expenses to hire experts, Attorney Romano argued to the court that he needed the experts to present the defense case, but then abandoned the defense strategy and proceeded to trial without experts. The petitioner avers that Attorney Romano made these decisions due to his own loyalties and interests, contrary to the petitioner’s defense interests. The respondent asserts the affirmative defense of procedural default to this claim because the petitioner did not raise it in either the trial court or on direct appeal. The petitioner denies that he has procedurally defaulted.

A. Procedural Default

"In essence, the procedural default doctrine holds that a claimant may not raise, in a collateral proceeding, claims that he could have made at trial or on direct appeal in the original proceeding and that if the state, in response, alleges that a claimant should be procedurally defaulted from now making the claim, the claimant bears the burden of demonstrating good cause for having failed to raise the claim directly, and he must show that he suffered actual prejudice as a result of this excusable failure." Hinds v. Commissioner of Correction, 151 Conn.App. 837, 852, 97 A.3d 986 (2014), affirmed on other grounds, 321 Conn. 56, 136 A.3d 596 (2016).

" ‘The appropriate standard for reviewability of habeas claims that were not properly raised at trial ... or on direct appeal ... because of a procedural default is the cause and prejudice standard. Under this standard, the petitioner must demonstrate good cause for his failure to raise a claim at trial or on direct appeal and actual prejudice resulting from the impropriety claimed in the habeas petition ... [T]he cause and prejudice test is designed to prevent full review of issues in habeas corpus proceedings that counsel did not raise at trial or on appeal for reasons of tactics, inadvertence or ignorance ... Therefore, attorney error short of ineffective assistance of counsel does not adequately excuse compliance with our rules of [trial and] appellate procedure.’ (Citations omitted; internal quotation marks omitted.) Cobham v. Commissioner of Correction, 258 Conn. 30, 40, 779 A.2d 80 (2001); see also Correia v. Rowland, 263 Conn. 453, 462, 820 A.2d 1009 (2003)." Brunetti v. Commissioner of Correction, 134 Conn.App. 160, 168, 37 A.3d 811, cert. denied, 305 Conn. 903, 44 A.3d 180 (2012).

" ‘[T]he existence of cause for a procedural default must ordinarily turn on whether the [petitioner] can show that some objective factor external to the defense impeded counsel’s efforts to comply with the [s]tate’s procedural rule ... [For example] a showing that the factual or legal basis for a claim was not reasonably available to counsel ... or ... some interference by officials ... would constitute cause under this standard ... A court will not reach the merits of the habeas claim when the petitioner fails to make the required showing.’ (Citations omitted; internal quotation marks omitted.) Johnson v. Commissioner of Correction, [285 Conn. 556, 568, 941 A.2d 248 (2008).]" Anderson v. Commissioner of Correction, 114 Conn.App. 778, 788, 971 A.2d 766, cert. denied, 293 Conn. 915, 979 A.2d 488 (2009).

The petitioner’s reply asserts that he could not have previously raised the claim in count one because Attorney Romano was burdened by the conflict of interest the petitioner has alleged. That is, Attorney Romano did not raise with the court that he had a conflict of interest because he knew that he had a conflict of interest. The petitioner further asserts that he will show that there is a reasonable likelihood that the result of the jury trial would have been different had Attorney Romano hired experts to assist him in presenting the petitioner’s defense.

The petitioner’s family retained Attorney Romano, who thereafter filed a motion to have the court approve funding for expert services. Petitioner’s Exhibit 6. The court, Mullarkey, J. presided over hearings spanning multiple days, ultimately denying the motion after finding that the...