Crocker v. Comm'r of Correction, 30786.

10 A.3d 1079

126 Conn.App. 110

Shawn CROCKER

v.COMMISSIONER OF CORRECTION.

No. 30786.

Appellate Court of Connecticut.

Argued Sept. 22, 2010.

Decided Jan. 18, 2011.

Mark M. Rembish, special public defender, for the appellant (petitioner).

James M. Ralls, assistant state's attorney, with whom, on the brief, were Michael Dearington, state's attorney, and Linda N. Howe, former senior assistant state's attorney, for the appellee (respondent).

BISHOP, HARPER and WEST, Js.

WEST, J.

The petitioner, Shawn Crocker, appeals from the judgment of the habeas court denying his third amended petition for a writ of habeas corpus. Onappeal, he claims that the court improperly concluded that he had not been denied effective assistance of counsel when his habeas counsel failed: (1) to raise claims of ineffective assistance of his trial and appellate counsel, (2) to raise a claim that the prosecution did not disclose exculpatory evidence, (3) to investigate potentially exculpatory information and (4) to raise a claimthat the petitioner's second criminal trial constituted a violation of the double jeopardy clause of the fifth amendment to the United States constitution.¹ We affirm the judgment of the habeas court.

The relevant facts and procedural history surrounding the petitioner's conviction were set forth by this court in our decision affirming the denial of his first petition for habeas relief. See Crocker v. Commissioner of Correction, 101 Conn.App. 133, 134-35, 921 A.2d 128, cert. denied, 283 Conn. 905, 927 A.2d 916 (2007). "Shortly before 7:30 p.m. on October 27, 1997, George David Wright drove a stolen Jeep Cherokee to the Quinnipiac Terrace housing complex in New Haven, also known as the Island. The victim, Daryl Price, was in the passenger seat of the Jeep, and Calvin Taylor was seated in the back. At the housing complex, Wright and Taylor exited the vehicle, and Tacuma Grear approached the Jeep to talk to the victim. They talked about the [fatal shooting] of Grear's brother, Corey Grear [by the victim], which had occurred approximately one week earlier, for which the victim ... apologized. Corey Grear was a friend of the [petitioner], and the [petitioner] had held [Corey Grear] in his arms after [Corey] Grear was fatally shot by the victim. The [petitioner] had witnessed the victim shoot Corey Grear. Corey Grear was also a member, as was the [petitioner], of the Island Brothers, a street gang intowhich the victim had been introduced and sponsored by the [petitioner]. As his sponsor, the [petitioner] was responsible for disciplining the victim should the victim kill a fellow gang member. As Tacuma Grear walked away from the Jeep, the [petitioner] had come up to the driver's side of the Jeep carrying a handgun. He then leaned into the Jeep and fired four times into the vehicle. Two .45 caliber bullets hit the victim, killing him, and two other bullets were found in the Jeep.... After a jury trial, the petitioner was convicted of murder in violation of General Statutes § 53a-54a and criminal possession of a firearm in violation of General Statutes § 53a-217." (Citation omitted; internal quotation marks omitted.) Id., at 134-35, 921 A.2d 128.

After his conviction, the petitioner filed a direct appeal with this court, and we affirmed the conviction. See State v. Crocker, 83 Conn.App. 615, 852 A.2d 762, cert. denied, 271 Conn. 910, 859 A.2d 571 (2004). At all times during his direct appeal, the petitioner was represented by attorney Adele V. Patterson. Id.

"Following his unsuccessful appeal, the petitioner filed an amended petition for a writ of habeas corpus, alleging, inter alia, ineffective assistance of his trial counsel, Leo Ahern, who had represented the petitioner throughout his first criminal trial, which resulted in a mistrial, and then again in his second trial." Crocker v. Commissioner of Correction, supra, 101 Conn.App. at 135, 921 A.2d 128. In the first habeas trial, the petitioner claimed that Ahern rendered ineffective assistance by failing to object to the admission of the transcript testimony of Travis Jenkins, which was elicited during the petitioner's first criminal trial and that he failed to investigate or to obtain evidence prior to the start of the second criminal trial. See id., at 134, 138, 921 A.2d 128. The petitioner argued that Jenkins' testimony was inadmissible because he was unavailable for cross-examination at the second criminal trial. See id., at 138, 921 A.2d 128.

At the conclusion of his first habeas trial, the court rejected the petitioner'sclaims of ineffective assistance of counsel, and this court affirmed that judgment. Id., at 144, 921 A.2d 128. In that appeal, we concluded that the petitioner had failed to demonstrate that "there [was] a reasonable probability that, but for the admission of the Jenkins transcript, the result of the trial would have been different." ² See id., at 141, 921 A.2d 128.

On June 21, 2007, the petitioner filed a third amended petition for a writ of habeas corpus, claiming, on this occasion, that his first habeas counsel, attorney Genevieve Salvatore, rendered ineffective assistance.³ Specifically, he claimed, inter alia, that Salvatore rendered ineffective assistance by failing: (1) to raise various claims of ineffective assistance of the petitioner's trial and appellate counsel, (2) to investigate potentially exculpatory information, (3) to raise a claim that the prosecution did not disclose exculpatory evidence and (4) to raise a claim that the petitioner's second criminal trial violated double jeopardy.

In that habeas trial, which is the subject of this appeal, the court, A. Santos, J., heard testimony from the petitioner, Salvatore and Detective Richard Pelletier of the New Haven police department. In particular, Salvatore was questioned extensively regarding her representation of the petitioner during his first habeas trial. On January 26, 2009, the court, by way of a twenty page memorandum of decision, denied the petitioner'sclaims of ineffective assistance of counsel. This appeal followed. Additional facts will be set forth as necessary.

In reviewing claims that are based on ineffective assistance of counsel, we begin by setting forth the familiar and well settled standard of review articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "In Strickland, which applies to claims of ineffective assistance during criminal proceedings generally, the United States Supreme Court determined that the claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance." (Emphasis in original.) Johnson v. Commissioner of Correction, 285 Conn. 556, 575, 941 A.2d 248 (2008). "The first prong is satisfied by proving that counsel made errors so serious that he was not functioning as the 'counsel' guaranteed by the sixth amendment. The second prong is satisfied if it is demonstrated that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Russell v. Commissioner of Correction, 49 Conn.App. 52, 53, 712 A.2d 978, cert. denied, 247 Conn. 916, 722 A.2d 807 (1998), cert. denied sub nom. Russell v. Armstrong, 525 U.S. 1161, 119 S.Ct. 1073, 143 L.Ed.2d 76 (1999).

" '[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, inpresenting his claims, was ineffective and that effective representation by habeas counsel establishes a reasonable probability that the habeas court would have found that he was entitled to reversal of the conviction and a new trial....' Harris v. Commissioner of Correction, 108 Conn.App. 201, 209-10, 947 A.2d 435, cert. denied, 288 Conn. 911, 953 A.2d 652 (2008). Therefore, as explained by our Supreme Court in Lozada v. Warden, 223 Conn. 834, 613 A.2d 818 (1992), a petitioner claiming ineffective assistance of habeas counsel on the basis of ineffective assistance of trial counsel must essentially satisfy Strickland twice: he must 'prove both (1) that his appointed habeas counsel was ineffective, and (2) that his trial counsel was ineffective.' Id. [at], 842 ; see also Denby v. Commissioner of Correction, 66 Conn.App. 809, 812-13, 786 A.2d 442 (2001), cert. denied, 259 Conn. 908, 789 A.2d 994 (2002)." (Emphasis altered.) LaPointe v. Commissioner of Correction, 113 Conn.App. 378, 394-95, 966 A.2d 780 (2009).

"Because both prongs [of Strickland ] must be established for a habeas petitioner to prevail, a court may dismiss a petitioner's claim if he fails to meet either prong.... Accordingly, a court need not determine the deficiency of counsel's performance if consideration of the prejudice prong will be dispositive of the ineffectiveness claim." (Internal quotation marks omitted.) Pierce v. Commissioner of Correction, 100 Conn.App. 1, 11-12, 916 A.2d 864, cert. denied, 282 Conn. 908, 920 A.2d 1017 (2007).

We will now address each of the petitioner's claims of ineffective assistance individually, cognizant that his claims regarding previous habeas counsel will not succeed if the claims of ineffective assistance of trial counsel lack merit. See LaPointe v. Commissioner of Correction, supra, 113 Conn.App. at 395, 966 A.2d 780. On appeal, the petitioner asserts, inter alia, that the court improperlyconcluded that attorney Salvatore did not render ineffective assistance. Under this rubric, the petitioner raises eight...