Davis v. Commissioner of Correction

Larry DAVIS #136711 v. COMMISSIONER OF CORRECTION

No. CV144006399

Superior Court of Connecticut, Judicial District of Tolland, Rockville

June 5, 2019

UNPUBLISHED OPINION

Hon John M. Newson

I. Procedural History

The petitioner was the defendant in three matters spending under Dockets CR6-0490576, CR23-0024537, and CR23-024538 in the Judicial District of New Haven. Over several objections by defense counsel, the matters were consolidated for trial where the jury could have reasonably found the following facts:

In September 1998, the first victim, Victoria Standberry, had been introduced to the defendant by her best friend Taraneisha Brown. Brown and the defendant were involved in a personal relationship. On September 27, 1998, Standberry asked Brown for payment toward a substantial debt owed by Brown. Brown replied that she would return Standberry’s telephone call but never did.

The next day, the defendant received a telephone call in the afternoon and left work early. On the evening of September 28, 1998, Standberry parked her vehicle in the Pro Park parking lot located near Yale-New Haven Hospital (hospital), where she was employed in the food and nutrition department. Brown knew that Standberry parked in that particular lot when working at the hospital. Standberry left the hospital carrying a plate of food at approximately 9:25 p.m. and went to her vehicle. As she was placing the food in her vehicle, she observed an individual approach. She attempted to close her door, but it was forced open. The defendant came up to Standberry, said ‘revenge, ’ and shot her several times before slowly walking away.

The next day, Standberry identified the defendant as the shooter to the investigating police detective. The police commenced a search for the defendant but were unsuccessful in locating him. The defendant missed his October 20, 1998 meeting with his parole officer. Law enforcement agents eventually apprehended the defendant in Atlanta, Georgia, on September 4, 1999. After returning to Connecticut on April 19, 2000, the defendant was released on bond.

Attorney Thomas Farver represented the defendant and attended a pretrial conference on October 1, 2001. The court, Fracasse, J., scheduled the defendant’s trial for October 9, 2001, and Farver informed the defendant of this date. The defendant failed to appear at the courthouse on October 9 and 10, 2001, and the court issued a warrant for his arrest. Members of the Connecticut violent crime fugitive task force searched for the defendant and learned that he was residing in Florida. The defendant was arrested in Palm Beach County on October 6, 2003, and was returned to Connecticut on December 3, 2003. These events resulted in the state’s charging the defendant with assault in the first degree, carrying a pistol without a permit, criminal possession of a firearm, failure to appear in the first degree and, in a part B information, being a persistent dangerous felony offender. These charges were filed under docket number CR00-490576.

The second victim, Lenwood E. Smith, Jr., was at a club in New Haven on January 25, 2002. After speaking with the defendant for approximately twenty minutes, he left at 2 a.m. The defendant stopped Smith in the parking lot and asked for a ride to Sheffield Street. Smith agreed, and the defendant and his friend entered Smith’s vehicle. After arriving, the defendant asked Smith to drive them to Carmel Street, where an individual known as "Mizzy" owed him money. After Smith drove to the bottom of a hill, the defendant took out a gun and threatened him. Smith continued on to Carmel Street and parked. The defendant placed his gun against Smith’s head and demanded money. Smith gave the defendant his wallet and told him that he could get more from an automated teller machine. Smith drove to a nearby bank and, after parking, fled to a nearby gas station. Smith telephoned the police and showed them the bank parking lot where he had left his vehicle. The police recovered Smith’s vehicle approximately one week later.

The events surrounding the Smith incident resulted in charges against the defendant of robbery in the first degree, larceny in the second degree and, in a part B information, being a persistent dangerous felony offender. These charges were filed under docket number CR03-24537.

A summary of the evidence presented against the defendant with respect to a third victim, Leonard Hughes, is necessary for our discussion. There was evidence presented that Hughes was the superintendent of a building at 260 Dwight Street in New Haven. During the early morning of March 13, 2002, the defendant rang Hughes’ doorbell and said he was there to pick up items that an individual known as "Magnetic" [a.k.a. Nathaniel Wilson] had left for him. These items included a motor vehicle, a safe, a bulletproof vest and 2.5 kilograms of cocaine. The defendant entered the apartment, pointed a gun at Hughes and ordered him to turn over the requested items. The defendant took the keys to the motor vehicle and specifically asked for the cocaine. Hughes responded that there was no cocaine in the apartment. After being told to get on his knees, Hughes indicated that he would give the defendant the cocaine. The two men walked into a storage area, and Hughes managed to duck behind a steel door, escape through a window and flee to a nearby hotel. Hughes reported the incident to the police, who searched for the defendant, but were unable to locate him. Later that day, police officers recovered Hughes’ motor vehicle.

The events surrounding the Hughes’ incident led to the defendant’s being charged with burglary in the second degree, robbery in the first degree and larceny in the second degree.

State v. Davis, 98 Conn.App. 608, 611-14, 911 A.2d 753, 758-60 (2006), aff’d, 286 Conn. 17, 942 A.2d 373 (2008). The jury found the defendant guilty of all the charges pertaining to the Standberry and Smith incidents, as well as two counts of being a persistent dangerous felony offender. The court also found that the defendant had violated the terms of his probation, and imposed a total effective sentence of eighty years imprisonment. The jury acquitted the defendant on all of the charges pertaining to the Hughes incident. The petitioner was originally represented by an Attorney Thomas Farver, however, he failed to appear for a pretrial appearance on October 9, 2001, and then absconded from the jurisdiction. When he was apprehended in 2003, Attorney Robert Berke was assigned to represent the petitioner and represented him through sentencing. The petitioner, represented by Attorney Ira Grudberg, appealed his conviction, which were affirmed. Id.

The petitioner filed a prior petition for writ of habeas corpus alleging ineffective assistance against trial counsel and violation of his due process rights as a result of alleged police misconduct. He was represented by Attorney Roger Crossland in that matter, which was denied following trial. Davis v. Warden, Superior Court judicial district of Tolland, Docket No. CV08-4002425 (Cobb, J., Oct. 28, 2013), aff’d, Davis v. Commissioner of Correction, 160 Conn.App. 444, 124 A.3d 992 (2013), cert. denied, 319 Conn. 957, 123 A.3d 1012 (2015).

The present habeas action was commenced on July 21, 2014. The Second Amended Petition, filed on April 30, 2017, alleges ineffective assistance against Attorney Grudberg for his representation during the petitioner’s criminal appeal in Count One; ineffective assistance against Attorney Berke for his representation before the criminal court in Count Two; ^[1] and ineffective assistance against Attorney Crossland for his representation in the prior habeas trial. The respondent filed a return generally denying the allegations and raising the special defenses of procedural default and res judicata on April 13, 2017. The matter was tried before the Court on December 4, 2018.

II. Law and Discussion

"The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction ... has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. "The proper measure of attorney performance remains simply reasonableness under prevailing professional norms." Id. 688. "[T]he performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstances." Id. "Judicial scrutiny of counsel’s performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Id., 689. "Thus, a court ... must judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct. [The petitioner] must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the...